A three-judge Minnesota Court of Appeals panel has emphatically slapped down Hubbard Broadcasting’s request to look at unopened, rejected absentee ballots in the 2008 U.S. Senate election. A Ramsey County district court judge had OK’d the effort by KSTP-TV’s owners.
According to the just-released opinion:
Because Minn. Stat. § 13.37, subd. 2 (2008), unambiguously provides that sealed absentee ballots are nonpublic or private data until opened by an election judge, rejected absentee ballots that have never been opened by an election judge are nonpublic or private data.
The court ruled that the Minnesota Government Data Practices Act does not entitle Hubbard (and its TV stations, including KSTP) to look at the ballots.
The stations concede that rejected return envelopes and their contents, taken as a package, are data on individuals and private. But, the stations argue, the ballots taken alone are data not on individuals and therefore public unless classified as nonpublic or protected nonpublic by statute or federal law.
The plain language provides that when absentee ballots are sealed and have not been opened by an election judge, they are nonpublic or private. The rejected absentee ballots in possession of Ramsey County are indisputably sealed and have not been opened by an election judge. Under the unambiguous language of section 13.37, subdivision 2, the absentee ballots therefore are either nonpublic or private.
We conclude that the district court erred by determining that section 13.37, subdivision 2, does “not address the status of the rejected absentee ballots after the election process has ended.” The statute contains no time limitation of its application, and even if we agreed that a time limitation on the classification would be appropriate or consistent with the purpose of the data classification provided in the statute, courts cannot “supply what the legislature purposely omits or inadvertently overlooks.”
As I noted in January, Hubbard pledged to keep the identities of voters secret, but that didn’t matter to the appeals-court judges. The station has done stories criticizing the counting, and in its original brief, Hubbard argued the rejected-ballot look-see was an essential extension in understanding the story:
Although Mr. Franken has taken his seat in the United States Senate and the election contest between him and former Sen. Coleman has been concluded, there continues to be widespread debate and concern in Minnesota about how the state’s election laws functioned with respect to the 2008 general election, including concern about tabulation of the absentee ballots cast in the election.
Had Hubbard received access to the ballots (which it still might, depending on a Minnesota Supreme Court appeal), it would’ve been tricky to conclude which candidate was hurt. For example, some portion of the rejected absentee ballots were re-cast if election judges discovered errors early enough, so you couldn’t just automatically add votes to the Coleman, Franken or Barkley piles.
But in any event, for now, it doesn’t look like we’ll know.