League of Women Voters Minnesota Election Law: Absentee Ballots Briefing Paper

Transcription

1 League f Wmen Vters Minnesta Electin Law: Absentee Ballts Briefing Paper Cmmittee: LEAGUE OF WOMEN VOTERS MINNESOTA Minnesta Wmen s Building 550 Rice Street, Suite 200 St. Paul, Minnesta inf@lwvmn.rg Nvember 2009

2 League f Wmen Vters Minnesta Electin Law: Absentee Ballts Briefing Paper Table f Cntents I. Minnesta s 2008 Senate Electin II. The Recunt III. The Absentee Ballts IV. Absentee Ballt Errrs V. Prpsed Slutins a. Legislative Initiatives b. Administrative Prpsals c. Citizens Jury Recmmendatins fr the Future 1

3 The League f Wmen Vters Minnesta (LWVMN) psitin n electin law is Supprt imprvements in electin laws regulating electin prcedures, vting and schl district electins. The drama generated by Minnesta s 2008 U.S. Senate race demnstrated that LWVMN shuld clsely examine the peratin f Minnesta electin laws gverning absentee ballts. I. MINNESOTA S 2008 U.S. SENATE ELECTION It is the law in Minnesta that during the week fllwing Electin Day, crrectins t the fficial vte ttals are made by cunty electin fficials after prfing their wrk and nting errrs such as imprper data entry r transpsitin f numbers. 1 This pssibility f crrectins is the reasn results are deemed fficial nly after cunty auditrs present final tallies t the State Canvassing Bard and it apprves these tallies. 2 Minnesta U.S. Senate race results were fficially reprted n Nvember 18, 2008, as Nrm Cleman, 1,211,565; Al Franken, 1,211,359; and Dean Barkley, 437, The difference f 206 vtes between Cleman and Franken amunted t ne ne-hundredth f ne percent (0.01 %). State law mandates an autmatic manual recunt fr any federal r state race in which the difference between vtes cast fr the winning candidate and the runner-up is less than ne-half f ne percent (0.5%) f the ttal number f vtes cast fr that ffice. 4 The required recunt began n Nvember 19, 2008, and ended n January 5, 2009, after the Canvassing Bard had reviewed cntested ballts, watched clsely by bth campaigns and the public. The fficial results then std at Cleman, 1,212,206 and Franken, 1,212,431 a 225-vte difference in favr f Franken. The Cleman campaign filed a lawsuit in District Curt (hereafter referred t as the Appeal Panel) cntesting the recunt results. 5 After weeks f trial and testimny, the Appeal Panel determined that an additinal 351 absentee ballts had been imprperly rejected and shuld be cunted. 6 Accrdingly, the Secretary f State s ffice pened thse ballts n April 7, The results were Cleman, 111; Franken, 198; ther r n vte, 42. The additin f these ballts increased Franken s lead t 312 vtes. At this pint, the Panel ruled that Franken had received the highest number f legally cast vtes in the electin. Cleman then filed an appeal t the Minnesta Supreme Curt. Finally, at the end f June 2009, the Supreme Curt issued its unanimus ruling, affirming the Appeal Panel s finding and declaring Franken the winner f the electin. 7 Cleman decided against an appeal t the U. S. Supreme Curt. It is ntewrthy that there was n cntentin f fraud in the electin by either campaign. 8 2

4 II. THE RECOUNT The recunt that began Nvember 19 invlved hand cunting every ballt by a review panel. Generally, the recunts fr Minnesta s 2008 electin were cnducted at the cunty level. In additin t the review panel, bservers frm each campaign were present t versee the cunt and t challenge determinatins by the panel. The public and third party bservers, including thse frm LWVMN, als were permitted. Challenges are meant t address questins as t vter intent, including stray markings n r damage t the ballt. In this clse electin, hwever, challenges were raised when even the smallest pencil mark was nticed. Between the tw campaigns, ver 6000 ballts were challenged. Hwever, by December 16, 2008, ver 5,500 f these challenges were withdrawn by the campaigns, prir t review by the State Canvassing Bard. 9 With a 225-vte margin, as f January 5, 2009, and mre than 10,600 rejected absentee ballts remaining in their unpened envelpes, wrkers frm bth campaigns were wrking hard t get all f their vtes cunted. Here it is wrthwhile t nte that the plitical parties cllect canvassing data n vters and frequently have a gd idea f hw an individual may vte. Thus during the appeal, the campaigns fcused n certain absentee ballts, which are identified n an uter envelpe with the vter s name and address. Hearing testimny abut these ballts and reviewing these ballts cnstituted much f the wrk f the Appeal Panel. 10 3

5 III. THE ABSENTEE BALLOTS There were 2.92 millin vters in Minnesta s 2008 electin. 11 Of these, 293,830 vters (10.06%) cast absentee ballts. Apprximately 12,000 f these absentee ballts were deemed rejected/ineligible. During the recunt, cunty electin fficials reviewed rejected absentee ballts and ultimately determined that 1,346 had been imprperly rejected. These ballts were reviewed by bth campaigns, which agreed that 933 f them shuld be cunted. These were then pened, cunted by the Secretary f State s ffice, and included in the January 5, 2009, recunt ttals. Mst ballts in Minnesta are marked by the vter and read by ptical scanners at the plls n Electin Day. Absentee vting cmmences 30 days befre Electin Day, typically at cunty r city gvernment ffices. The ballts are held until Electin Day and sent t their prper precincts that afternn. It is up t electin judges in each precinct t verify and cunt their absentee ballts by using the precinct s ptical scanning machine. Verify means cnfirming that the absentee ballts meet all requirements as t vter registratin, signature, and witness signature. Typically the absentee ballts are held until the end f Electin Day, at which time they are crss-checked with the vter rlls t make sure a vter did nt vte in persn. (Nte that Minnesta law permits vting in persn n Electin Day even if the vter has submitted an absentee ballt. Such secnd vting is allwable nly if the absentee ballt has nt yet been cunted; it permits the vter t change his/her mind r t crrect an errr.) Because f the emphasis n absentee ballts during the recunt and appeal prcesses, ne may get the impressin that there was smething unusual abut the number f absentee ballts in 2008, and there was. The 2008 absentee ballt rate f 10.06% was an increase f almst 2% ver the last cmparable presidential electin in 2004, and an almst 3.5% increase ver the number f absentee ballts cast in While a 10% rate seems high in a state which encurages vter presence at the plls, much pliticking in 2008 was devted t encuraging peple t vte absentee in rder t avid lng lines n Electin Day. Althugh this suggestin ran cunter t Minnesta electin law, which requires a legitimate absence frm ne s precinct n Electin Day, peple nevertheless appeared t like the idea f using the absentee ballt prcess t vte early. Data n ineligible/rejected absentee ballts in past electins have nt been recrded. Hwever, the 2008 rejectin rate f 4% certainly seems high. There was n recurse fr vters with rejected absentee ballts. But fr the recunt and appeal prcesses in 2008, they prbably wuld never have knwn their ballts had been rejected. Currently, absentee ballts are nt cnsistently r autmatically examined fr eligibility prir t Electin Day, an apparently significant flaw in the system. 4

6 IV. ABSENTEE BALLOT ERRORS The rejectin f almst 4% f absentee ballts suggests that either requirements fr absentee vting are nt well understd by electin judges r the explanatin f the requirements printed n the envelpe is cnfusing t the vter. Fatal errrs bserved n absentee ballts rejected in the 2008 electin included the fllwing: Signature Issues Signatures n ballt envelpe and applicatin did nt match. Witness Issues Signed witnesses were nt registered vters at their current addresses. Minnesta law des nt require in-depth checking f witnesses, nly that the electin judges be satisfied. Mst precincts have n access t the Statewide Vter Registratin System (SVRS) which they need in rder t check witness registratins. Sme apparently deemed it sufficient fr a witness t self-certify that he/she was a registered vter. These difficulties led t a discrepancy in the level f rigr used t apprve r reject ballts in different cunties. Mistakes made by Electin Officials Registratin materials were sent t sme registered vters and sme vters wh needed registratin materials did nt receive them. Clerical mistakes were made while entering names and addresses int the SVRS with the result that vter names and/r addresses did nt match thse entered. Mistakes made by Vters/Electin Judges Sme absentee vters placed registratin materials inside the secrecy envelpes instead f inside the absentee ballt return envelpes. Sme judges pened the uter envelpe, nted that the persn was nt registered and crrectly did nt pen the secrecy envelpe. In ther cases judges pened the secrecy envelpe anyway, fund the registratin materials and then cunted the vte. Sme f the required infrmatin (including full name, address, witness signature, etc.) was nt prvided. Overseas ballts were nt always received in time. 5

7 V. PROPOSED SOLUTIONS Legislative Initiatives Prir t the Nvember 2008 electin, in respnse t Department f Defense directive , the Minnesta Legislature passed bipartisan legislatin t imprve the vting experience fr Minnestans living and wrking verseas. The Unifrmed and Overseas Citizen Absentee Vting Act (UOCAVA) permits cunty electin fficials t deliver blank ballts electrnically by r fax, effectively reducing the time necessary t receive and return a ballt by half. The law als eliminates the requirement fr a U.S. citizen r ntary t witness the vter s signature n the ballt, a majr handicap t verseas vters. It addresses security cncerns by enacting a new identificatin number match that guarantees ballts will be returned by the vters t whm they were sent. Finally, every cunty is required t establish a UOCAVA bard charged with issuing, cllecting, and reviewing absentee ballts, as well as with accepting r rejecting them. As a result f this legislatin, the Nvember 2008 electin had three times as many verseas absentee ballts cast as in 2006, and the rejectin rate drpped frm 14.8% t 6.4%. 13 A cntinuing prblem, hwever, is the fact that Minnesta hlds primary electins n the secnd Tuesday after the first Mnday in September. This timing has made it difficult fr verseas vters t receive ballts and return them in time t be cunted. In Octber 2009, Cngress passed the Military and Overseas Vter Empwerment Act (MOVEA) which requires that states prvide military and ther verseas vters with ballts at least 45 days ahead f an electin. 14 The Minnesta Legislature is expected t pass a bill mving the primary frm September t mid-august, thereby fulfilling the MOVEA requirement. Gvernr Tim Pawlenty is expected t sign this bill. State legislative attempts t crrect ther vting prblems have nt been successful. The Omnibus Electins and Campaign Finance Prvisins Bill that passed in 2009 (SF1331/HF1351) 15 cntained a number f imprtant prvisins, including the fllwing: (1) It wuld centralize absentee ballt prcessing by a ballt bard in each jurisdictin. (2) All rejected ballts wuld be reviewed by the entire ballt bard. (3) Absentee ballt status as accepted r rejected wuld be psted n the statewide registratin system which vters culd check. (4) Absentee vters with rejected ballts wuld be ntified and sent replacement ballts r therwise allwed t cast anther ballt. (5) The current practice f cmparing signatures t validate a ballt wuld be replaced by the vter s date f birth, last fur scial security number digits, and driver s license/id card number. (6) If a vter s absentee ballt were accepted, the SVRS wuld be s marked and the vter wuld nt be allwed t vte n Electin Day. (7) After the plls clse n Electin Day, the ballt bard wuld cunt the absentee ballts and add the ttals t the apprpriate precinct ttals. This legislatin was passed by bth huses n May 18, It was veted by the gvernr n May 22, In the 2010 legislative sessin LWVMN plans t supprt an absentee ballt refrm bill with prvisins similar t thse utlined abve. In additin, LWVMN will supprt an early vting bill which wuld require cunties t prvide ne r mre plling places where vters may cast an early ballt, i.e., fill ut the ballt and feed it int a machine. The vte wuld nt be cunted at that pint, but if the vter had made an errr n the ballt, the machine wuld reject it and the vter wuld be given a new ballt. These ballts wuld be cunted after the plls clsed n Electin Day. 6

8 Administrative Prpsals In Nvember 2009, MN Secretary f State Mark Ritchie annunced prpsed changes t the rules gverning absentee ballts. 17 The new absentee ballt wuld include better instructins, a listing f materials vters need in rder t cmplete their absentee ballts, clear labels, step-by-step illustratins, visual cues, and additinal instructins fr peple with disabilities. A hearing was held befre an administrative law judge n December 18, 2009, at which time LWVMN submitted cmments supprting these changes. Shuld the prpsed changes be apprved, they will be effective in March Citizens Jury Recmmendatins fr the Future In June and July 2009, a citizens jury was cnvened in Minneaplis by Prmting Healthy Demcracy and The Jeffersn Center, tw Minnesta-based nn-partisan, nn-prfit rganizatins. They charged the jury f 24 randmly selected citizens frm thrughut the state with making recmmendatins fr cnducting future electin recunts. 18 After hearing testimny, the citizens jury, c-spnsred by Representative Laura Brd and Secretary f State Mark Ritchie, develped a list f what went well, including the fllwing: The paper ballt recunt by hand was very accurate and effective. The vting machines were very accurate. Having a paper trail was key t the success f the prcess. The recunt laws and statutes wrked well. The recunt was well rganized. The canvassing bard functined well. The prcess had gd security measures and there was n fraud. The prcess was transparent t the public. The same jury decided that sme aspects merited further study and made recmmendatins as fllws: Needing Further Study Citizens Jury Recmmendatins Rle f plitical parties Cmplexity f absentee ballts Absentee ballt prcessing Timing f absentee vting Timing f recunts Primary Electin date Ballt review prcess Recunt trigger threshld Establish Rules f Cnduct and allw fewer candidates representatives t be invlved in the recunt prcess. Simplify applicatin and ballt. Allw fr self-certificatin instead f requiring a witness s signature. Centralize at the cunty level. Allw sme type f early vting. Set time limits fr the varius stages f the recunt prcess. Mve primaries t an earlier date. Standardize. Lwer frm less than ne-half f ne percent t less than ne-quarter f ne percent. 7

9 References 1. Minnesta Gvernment Statutes, 2. Accrding t the Minnesta Cnstitutin Article VII, Sectin 8, the State Canvassing Bard cnsists f the Secretary f State as its chair, plus tw Supreme Curt Justices and tw District Curt Justices. In 2008, the members were Secretary f State Mark Ritchie, Chair; Chief Justice Eric J. Magnusn, Minnesta Supreme Curt; Assciate Justice G. Barry Andersn, Minnesta Supreme Curt; Judge Kathleen Gearin, District Curt Judge and Chief Judge, Secnd Judicial District; and Judge Edward J. Cleary, District Curt Judge and Assistant Chief Judge, Secnd Judicial District. 3. Canvassing Bard Meeting Nvember 18, 2008, Item Minnesta Statute 204C.35, Subdivisin 1(b) (1) (2008). Fr mre infrmatin, g t - Statutes, which lists Minnesta electin statutes. 5. The Appeal panel is usually appinted by the Chief Justice. Hwever, Chief Justice Magnusn recused himself because he was n the State Canvassing Bard. The lngest serving member f the Supreme Curt, Justice Alan Page, chse three appellate judges frm the Secnd District, Judge Elizabeth Hayden, Judge Kurt Marben, and Judge Denise Reilly. Minnesta Statute , Subdivisin 2; Duchscehere, Kevin, Franken-Cleman Senate race ges t trial, StarTribune, January 26, A link t the Ntice f Entry f Judgment (by the trial curt), April 14, 2009, Curt File Number 62-CV is: 7. The Minnesta Supreme Curt ruling A09-697, June 30, 2009, is available as a PDF file at: under MN Supreme Curt Ruling. 8. Ibid., pages 4 and 5: N claim f fraud in the electin r during the recunt was made by either party. 9. A list f withdrawn challenges: The Minnesta District Judges Fundatin presented its Cmmunity Service Award t the three-judge panel in September 2009, stating that the panel displayed the highest levels f prfessinalism, public service, and judicial independence and integrity The estimate f eligible vters in 2008 was 3,741,514. Thus, the vting rate in Minnesta was abut 78%. 12. The mst recent cmparable electin (that is, a presidential electin year) was 2004, in which there were 2.84 millin vters, 231,771 f whm cast absentee ballts. This is an 8.16% absentee ballt rate. Fr the 2006 general electin, there were 2.21 millin Minnesta vters, 146,529 casting absentee ballts, a 6.63% absentee ballt rate. 13. Case Study: Minnesta Takes The Lead in 2008: MN09.pdf 14. S.1415, the Military and Overseas Vter Empwerment Act: m=10&filter=0 15. SF1331, Cnference Cmmittee Reprt-86 th Legislative Sessin ( ): Vet Letter : Vn Sternberg, Bb, Designing ballts that wn t be rejected, StarTribune, Nv. 14, 2009: A Citizens Jury Reprt July 2009: Wh s Wh in this Paper: Nrm Cleman, Incumbent Republican United States Senate Candidate, 2008 Electin Al Franken, Demcratic Candidate fr United States Senate, 2008 Electin Dean Barkley, Independence Party Candidate fr United States Senate, 2008 Electin Tim Pawlenty, Minnesta Gvernr, Republican Mark Ritchie, Minnesta Secretary f State, Demcratic-Farmer-Labr Laura Brd, Minnesta Representative District 25A, Republican 8

10 LWVMN 2010 LWVMN, 550 Rice Street, St. Paul, MN Phne , Fax Cmmittee Members: Betsy Halvrsn, LWV Suth Tnka Suzanne Napgezek, LWV Willmar Miriam Simmns, LWV St. Crix Valley Zandy Zwiebel, LWV Duluth, LWVMN Vter Service C-Chair Advisrs: Helen Palmer, LWV Minneaplis, Past LWVMN President Debrah Price, LWV Wayzata/Plymuth Area, LWVMN Prgram Chair Editrs: Mary Gver, LWV Richfield, LWVMN Treasurer Geri Nelsn, LWV Anka/Blaine/Cn Rapids Area, LWVMN 1 st Vice-President, Vter Service C-Chair Gwen Myers, LWV Minneaplis, LWVMN 2nd Vice-President, Actin Chair Additinal Help: Pat Davies, LWV-at-Large, LWVMN Actin Laura Wang, LWV-at-Large, LWVMN Legislative Crdinatr Design and Layut: Kim Ciresi, LWV-At-Large, LWVMN Cmmunicatins C-Chair/Marketing 9