INTRODUCTION

The Secretary of State's Office created Rule 9 as a means of ensuring that the parties would have access to the original ballot, rather than the duplicate, because the original ballot was the best evidence of the voter's intent during the recount.' Representatives of the Coleman for Senate campaign agreed to Rule 9 under the mistaken assumption that Minnesota precinct judges would precisely follow the requirements of Minn. Stat. § 206.86, subd. 5, as well as training received by such judges from the Minnesota Secretary of State Election Division, and properly label all originals and duplicates. Unfortunately, it is now clear that in several precincts throughout the state of Minnesota, including numerous precincts in Minneapolis, the election judges inadvertently failed to mark all of the duplicated ballots, thereby making it impossible to retrieve them and leading to the double-counting of ballots during the Canvassing Board's recount.

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ARGUMENT

I. MINNESOTA LAW SETS FORTH SPECIFIC PROCEDURES FOR THE DUPLICATION OF DAMAGED BALLOTS.

Minnesota law requires the accurate creation of duplicate ballots in circumstances in which the original ballot is unable to be read by the tabulation machines (such as tom and damaged ballots and UOCAVA/overseas ballots). Minnesota law also clearly requires that only the duplicate be counted, while preserving (but not counting) original ballots. Minn. Stat. § 206.86, entitled "Counting Electronic Voting System Results," provides the procedure for the election-night counting of votes where a precinct uses an electronic voting system.

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II. MINNESOTA LAW CREATES A PRESUMPTION THAT DUPLICATE BALLOTS WERE MADE AND COUNTED BY VOTING MACHINES ON ELECTION NIGHT.

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Additionally, the record in this matter contains the election day pre-registered voter sign-in rosters, same-day registration rosters and UOCAVA rosters, as well as machine tapes from election night, all of which evidence the number of persons actually voting on election night. See Exhibits C56-60, C86-90, C94-98, C102-105, C110-113, C117-120, C138-141, C146-149, C153-156 and C160-163. The record in this matter also evidences the number of ballots actually counted during the recount, which numbers were certified by the Minnesota State Canvassing Board. See Exhibit C603 (introduced during the testimony of Minnesota Elections Director Gary Poser).

A comparison of these exhibits demonstrates that, in 10 Minneapolis precincts, the number of votes counted during the recount exceeded the number of persons actually casting ballots at those precincts on election night, as follows:

[Note: The "VFA VOTERS PRESENT" column has been added, which uses data collated from the SOS website.]

VOTERS RECOUNT [VFA VOTERS] PRECINCT PRESENT BALLOTS [PRESENT] Minneapolis W11-P8 2857 2873 2851 Minneapolis W12-P8 2923 2936 2922 Minneapolis W10-P2 2079 2087 2076 Minneapolis W11-P7 1996 2004 1995 Minneapolis W7-P7 1849 1865 1856 Minneapolis W9-P2 1712 1718 1712 Minneapolis W10-P4 1193 1197 1192 Minneapolis W2-P5 2102 2104 2100 Minneapolis W8-P10 2214 2217 2215 Minneapolis W13-P1 1916 1921 1921

Where there are more ballots counted in the recount than voters who cast ballots on election day, such excess ballots are illegal and, therefore, cannot be certified by this Court to constitute legally cast ballots. See Johnson v. Tanka, 154 N.W.2d 185, 187 (Minn. 1967) (noting that where there are more ballots than voters who voted on election day, the votes cast over the number of voters "cannot be said to be legal."). "The outcome of an election should rest upon ballots received according to law and should not be determined by illegal votes." Id.

III. THE PROCESS UNDER RULE 9 FOR COUNTING ORIGINAL BALLOTS WHEN THE NUMBER OF ORIGINAL AND DUPLICATE BALLOTS DOES NOT MATCH DID NOT COMPLY WITH MINNESOTA LAW.

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When the campaigns agreed to Rule 9, they did so with the understanding that the original ballot would be the best evidence of intent of the voter under Minn. Stat. § 204C.22 and the presumption that local election officials had created duplicate ballots and properly marked all duplicate and original ballots, as required by Minnesota law. Neither their agreement nor Rule 9 can prevent this Court from applying Minnesota law in the face of clear evidence that Minnesota law was not uniformly followed in the correct marking of duplicate ballots.

First and foremost, it should be noted that Rule 9, on its face, does not mandate that originals for which no marked duplicates were found during the recount should be counted and included in the recount totals, The language relates to "sorting" and not "counting." Thus, Rule 9 complements Minnesota law by enabling a comparison (via "sorting") of the marked original ballots (found in the folder containing originals from which duplicates were made) to the corresponding marked and numbered duplicates.

CONCLUSION

For the reasons set forth above, Contestants respectfully request that the Court issue an order (a) declaring Rule 9 as applied during the recount in precincts in which the number of originals exceeded the number of marked duplicates to be invalid as a matter of law and (b) directing that pursuant to Minn. Stat. § 206.86, subd. 5, all ballots in those precincts which were challenged for the lack of a corresponding duplicate shall not be counted in determining which party received the highest number of legally cast votes. For the Minneapolis precincts at issue this simply requires that the double-counted votes be subtracted from the vote total. For the remaining precincts at issue, an inspection should be ordered or the Court should revert to the election night vote totals.

Dated: March 2, 2009

Source: Memorandum in Support of Motion for an Order Declaring Recount Rule 9 Invalid as a Matter of Law via MNCourts.gov [PDF]