Minn. high court rules sealed absentee ballots not public

J.C. Derrick | Freedom of Information | Feature | November 17, 2011

In the latest legal dispute involving Sen. Al Franken's contested 2008 U.S. Senate election, the Minnesota Supreme Court has upheld a lower court decision to keep rejected absentee ballots from being released to five television stations seeking access to the information under the state's open records law.

The state high court's ruling on this week ends more than three years of legal wrangling in one of the longest Senate races in U.S. history. Franken, D-Minn., emerged victorious over Republican incumbent Norm Coleman, who did not concede the November 2008 election for seven months.

Out of more than 2.9 million votes cast, the two candidates were ultimately found to be separated by 312 votes, bringing absentee ballots under increased scrutiny.

In June 2009, KSTP-TV and four other television stations sued to obtain the rejected absentee ballots under the state's open records law, the Minnesota Government Data Practices Act. A Minnesota trial court in Ramsey ruled in favor of the television stations, but the decision was reversed by the Minnesota Court of Appeals.

The Minnesota Supreme Court upheld the appeals court ruling based on an exemption to the open records law that says sealed absentee ballots are not public "prior to opening by an election judge."

The court found the open records exemption to be unambiguous and clearly applicable to the rejected absentee ballots.

Attorney Mark Anfinson, who represented the television stations, said he was not surprised at the outcome.

"It seemed when we argued this on March 1 that there were some headwinds blowing. The court did not like the release we were requesting," he said. "I never did understand the strength of the hostility by the court to this request."

Ramsey County Elections Manager Joe Mansky said the right of access for the absentee ballots is a legitimate question, but the current law is unambiguous about the ballots remaining sealed.

"We did tell the court in our argument is there is a question of whether this information should be public," Mansky said. "That's certainly a question worth arguing and discussing, but they were in the wrong forum to do that. That discussion should have taken place before the [state] legislature."

The original vote count had Franken and Coleman separated by 206 votes, sparking a state-wide manual recount. In response to a petition by Coleman, the Minnesota Supreme Court ordered absentee ballots to be re-evaluated and then opened if the candidates and officials agreed they had been rejected improperly. After counting an additional 933 absentee ballots, Franken's winning margin increased to 225.

A three-judge panel, which was specifically appointed by the state high court for this issue , later ordered 351 additional sealed absentee ballots to be opened and counted, resulting in a 312-vote margin of victory for Franken. The Minnesota Supreme Court affirmed the final count in a unanimous 5-0 decision in June 2009.

"I think the court decided that this chapter in Minnesota's political history needed to be finished, and I respect that," Anfinson said.

According to Anfinson, some media members are planning to lobby the Minnesota State Legislature to gain access to rejected absentee ballots in the future.