STATE OF MINNESOTA COUNTY OF OLMSTED DISTRICT COURT THIRD JUDICIAL DISTRICT CASE TYPE: CIVIL OTHER Al Franken for Senate Committee and Al Franken, Case No. Applicants, vs. Olmsted County, including its Auditor and its County Canvassing Board, APPLICATION FOR CORRECTION OF OBVIOUS ERRORS IN 2008 UNITED STATES SENATE ELECTION Respondents. For their Application, Applicants state and allege as follows: 1. The Al Franken for Senate Committee is the authorized campaign committee for Al Franken, a candidate for the office of United States Senator from the state of Minnesota in the general election conducted on November 4, 2008. 2. The election results for United States Senator have not been certified and, under the applicable provisions of Minnesota election law, the State is currently conducting a mandatory recount under the jurisdiction of the Minnesota Secretary of State and the State Canvassing Board. 3. While that recount process is occurring, Minn. Stat. 204C.39 accords each county the statutory right and, indeed, the obligation to correct any errors that are obvious. 4. Respondent Olmsted County ( the County ), including its County Canvassing Board and Auditor, has the responsibility for administering the election within its jurisdiction - 1 -
and accurately counting and canvassing all validly cast ballots, including those that, for any reason, were not properly counted on election day. 5. To report accurate election results, the County must locate and count all ballots that were validly cast by (a) voters at its precinct polling locations; (b) absentee voters, including those overseas who vote utilizing the provisions of the Uniformed and Overseas Citizens Absentee Voting Act ( UOCAVA ). 6. For the following reasons, the County has accepted but erroneously failed to count 27 absentee ballots validly cast in the 2008 Senate Election: A. On December 10, 2008, the Director of Elections for Olmsted County sent copies of what were described as 37 rejected absentee ballots to David L. Lillehaug, Esq., counsel for the Applicants. B. Upon his review of the copies of those ballots, Mr. Lillehaug noted that 27 of them had, in fact, been marked as accepted and did not indicate any reason for their purported rejection. C. In his December 11, 2008 letter to the County s Property Records and Licensing Department, Director of Elections, and County Attorney s Office, Mr. Lillehaug advised the County that 27 of the purportedly rejected ballots had, in fact, been accepted. On behalf of the Applicants, he requested that the County open and count those 27 erroneously rejected ballots in a time sensitive manner because the State Canvassing Board will be meeting shortly to declare the statewide voting results for the 2008 Senate election. D. In its December 12, 2008 letter, the County Attorney s Office responded to Mr. Lillehaug s December 11, 2008 letter. In it, the County stated that it found no authority for including those 27 absentee ballots in its final vote totals for the Senate election. The letter - 2 -
then stated that the County had determined it would send those 27 ballots to the Secretary of State s Office to be considered by the State Canvassing Board. It also stated that the Secretary of State s Office had concurred with that decision. E. The County s response is erroneous because there is ample statutory, constitutional, and caselaw authority mandating that these accepted, uncounted absentee ballots be opened and counted. As set forth with specificity in the accompanying Applicants Memorandum of Law, Minnesota election law, caselaw, and federal and Minnesota Constitutional law all mandate the opening and counting of any ballots left uncounted as a result of error, including any obvious error by County election officials. Moreover, Minnesota law permits the County to correct those errors at any time before the election is officially certified. To date, no certification has occurred and the County may properly count the accepted, uncounted ballots. F. On December 15, 2008, the Secretary of State s Office advised Applicants counsel that it had not concurred in any decision by the County not to count the accepted, uncounted ballots or to forward them to the Secretary of State s Office for submission to the State Canvassing Board. G. On December 15, 2008, the County Canvassing Board announced that it would conduct a public meeting on December 16, 2008 at which it would open and count absentee ballots. H. On December 16, 2008, the County Canvassing Board announced that it was cancelling that public meeting until further notice. - 3 -
7. It is urgent that these 27 accepted, uncounted absentee ballots be opened and counted so that the results may be reported to the State Canvassing Board, which has announced it intends to complete its work by Friday, December 19, 2008. 8. The County s failure to count these accepted, uncounted absentee ballots violates Minnesota election laws and fails to accord Equal Protection of the Law under the United States and Minnesota Constitutions to the voters who cast them and to the candidates for whom they have voted. 9. Applicants are irreparably harmed by this failure to count ballots lawfully cast in the U.S. Senate race, one of the closest in the Minnesota s and the nation s history. 10. Applicants are entitled to an order under Minn. Stat. Section 204C.39 compelling the County to correct the errors alleged above. They are also entitled to that order pursuant to the County Canvassing Board s inherent power to correct errors in accordance with controlling Minnesota caselaw and the requirements of the Equal Protection Clauses of the United States and Minnesota Constitutions. WHEREFORE, Applicants respectfully request that the Court issue an Order: 1. Declaring and adjudging that the election judges in Olmsted County erroneously failed to count the 27 accepted absentee ballots. 2. Ordering that, on or before Thursday, December 18, 2008, the County Canvassing Board reconvene, open and count the 27 accepted absentee ballots that were not counted as a result of an obvious error, and pursuant to Minn. Stat. 204C.39, prepare an addendum to its regular report reflecting the votes in those 27 ballots, and furnish the same to the Secretary of State for canvass by the State Canvassing Board. - 4 -
3. Granting such other relief as the Court determines is just and equitable. Dated: December 16, 2008 David L. Lillehaug (#63186) Steven Z. Kaplan (53739) FREDRIKSON & BYRON, P.A. 200 South Sixth Street Minneapolis, Minnesota 55402 Telephone: (612) 492-7000 Facsimile: (612) 492-7077 ATTORNEYS FOR APPLICANTS ACKNOWLEDGMENT Applicants acknowledge that sanctions may be imposed under Minn. Stat. 549.211. Steven Z. Kaplan 4478186_1.DOC - 5 -