The Minnesota Supreme Court yesterday issued an order in response to the DFL’s challenge to balloting procedures in the wake of Senator Paul Wellstone’s death. In addition to finding that supplemental ballots for the physical polls must be produced listing Mondale as the DFL candidate (which was not in dispute), the court found that voters who have already cast absentee ballots should be able to request a new ballot, either by mail or in person. The court also ruled that if two absentee ballots are submitted, the later should count. The court also clarified that if only the original absentee ballot is received, it should be counted "in the same manner as if the vacancy had not occurred."
There has been some confusion about what this ruling means. Pointing to one of the ambiguities, Howard Bashman’s excellent blog "How Appealing" asks the question of whether the court’s language about counting non-substituted ballots "as if the vacancy had not occurred" means that these votes will be counted for Mondale. First, the language regarding counting the Wellstone absentee ballots in the absence of a replacement ballot is taken directly from Minnesota statute section 204B.41. Simply put, this means that if a voter does not replace their previously mailed ballot, a vote for Wellstone will count as a vote for Wellstone, and not for Mondale, because Wellstone was the candidate if the vacancy did not occur. This is consistent with ordinary voter law: we dont let parties change peoples votes. While Minnesota law permits a party to replace its candidate on the ballot due to extraordinary circumstances, voting law presumes that a voter selects a candidate, and not a party. Even under the loosest conceptions of voter intent, a voting official cannot presume that a vote for one candidate is functionally equivalent to a vote for any candidate of that same party. In this respect, the Minnesota Supreme Courts decision is consistent with Minnesota law and with general principles of election law.
Second, the court basically split the baby with regard to issuing new ballots. The court required elections officials to provide new ballots either via mail or in person for voters who have already cast an absentee ballot. By limiting the requirement to those who have already cast a vote, the court tacitly recognized that those who have yet to return their ballot may simply write-in Mondale (keeping in mind that there is not an unmitigated constitutional right to appear on the ballot).
This was far less than the Democrats sought in the case. The DFL wanted the court to require elections officials to produce a complete new set of absentee ballots (which is expressly contrary to the requirements of Minnesota election law), and they also sought to make the ballots available via email and the internet. The court rejected this option (wisely, considering the large probability of fraud with such untested methods), and stuck with either in person delivery or good ol’ fashioned snail mail. The court did not alter the Minnesota elecation day deadline for receipt of the ballots, however, and therefore the use of snail mail may be a poor option for those who wish to assure that their vote is received by the deadline. This will tend to mean that those seeking to change their absentee votes will need to show up in person to request and return their ballot to assure that it is received in time.