Constitutional Law

Minn. appeals court rejects access to absentee votes

By By The Associated Press

MINNEAPOLIS ? Rejected absentee ballots count as private information under the state's Data Practices Act, the Minnesota Court of Appeals ruled yesterday, rejecting a TV station's effort to gain access to ballots that were never counted in the state's 2008 U.S. Senate race.

The appeals court reversed a ruling by a Ramsey County judge in a lawsuit brought by KSTP-TV, which was seeking access to thousands of absentee ballots that were rejected and went uncounted in the hotly disputed race. After a protracted recount and court trial, Democrat Al Franken edged Republican incumbent Norm Coleman by 312 votes out of 3 million cast.

The appeals court said the Minnesota Government Data Practices Act unambiguously states that sealed absentee ballots are classified as private data until opened by an election judge, so rejected absentee ballots that have never been opened also count as nonpublic data.

Mark Anfinson, an attorney for KSTP-TV, said the station would appeal to the Minnesota Supreme Court and will likely ask the high court for a temporary order to ensure that the unopened ballots are preserved in the meantime.

Anfinson said the TV station disagreed with the Court of Appeals' conclusion that the language on absentee ballots in the Data Practices Act is clear. It isn't, he said, and the language should be construed to mean the ballots are public as long as the voters can't be identified.

KSTP-TV and other Hubbard Broadcasting Corp. stations had said their goal was to build public understanding of how the process worked in 2008, and where it didn't. They sought access only to the ballots, not the outside envelopes that bear voters' names and other identifying information used to determine whether they were valid.

The ruling was handed down on the same day that Minnesota held its first-ever August primary election and its first test of a new, centralized system for counting absentee votes enacted after the disputed 2008 race. The goal is a more consistent, accurate count.

"There's a delectable perversity to this decision being issued on election day," Anfinson said.

Full post as published by First Amendment Center on August 10, 2010 (boomark / email).