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Challenges, Counting, Duplicates and Other Minnesota Recount Complaints

Jana Kooren,
ACLU of Minnesota
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November 25, 2008

“Challenge, identifying mark.”

“Challenge, voter intent unclear.”

Those words have been said over and over again throughout the three days I have observed the Minnesota Senate election recount thus far. I’ve learned quite a lot about how the parties play the game, and I have not always been pleased with what I saw. Pettiness, unnecessary challenges and new requests abound. By the end of my third day I was getting tired of it, and I’ll bet the election judges were too.

In much of Minnesota, we use paper ballots where you fill in a circle next to a candidate’s name. A challenge, if made, is supposed to be based on a campaign observer’s belief that the election judge is counting the ballot for the wrong person. Let’s say the voter made a mark in between the two candidates’ circles and you couldn’t really tell which candidate a vote was for — the voter’s intent is unclear. And occasionally, someone puts their name or other information on a ballot that would identify who the voter is, and since we have anonymous voting in Minnesota, that identifying mark could disqualify their ballot. These are circumstances where you might legitimately expect a challenge.

Since the start of the recount, which was almost a week ago, there have been over 2,000 challenges, and I personally have witnessed over 50 of those challenges. What I’ve seen is challenge after challenge for ridiculous reasons. It would usually start out where one campaign would challenge a ballot for an accidental mark somewhere on the ballot — a random pen mark anywhere on the ballot, really. Then the other campaign would see what was going on and they would start to challenge every ballot that had a pen mark on it (now keep in mind the circles were completely filled for one candidate — that much was clear). Then they would make petty comments to one another about how frivolous the other challenges were, but each would still continue to do it. One table that I saw had 18 challenges in the span of an hour. To give you some perspective, in the county I was observing, the head of the election said in his 24 years of leading recounts he had seen 10 challenges total!

Another common challenge was if a voter made a check mark or an “x” or scribbled outside the circle. Really, anything was challenged that was not the typical filled-in oval. I would sit there and document each challenge as I was supposed to, but thinking how this is so unnecessary and a waste of everyone’s time. Furthermore, I was angry that they were trying to disenfranchise voters: they wanted votes to be disqualified because of a random pen mark? That is a complete miscarriage of justice in my mind, and I think it hurts the campaigns’ credibility.

The next objection was over how the election judges counted the votes. The first day I saw them counting, they had a stack of ballots face up and they would look at each one (with the challengers watching) and place it in the proper pile. Then one of the campaigns said that it was hard to read ballots this way, and so the next day the judges had to sort the ballots upside down before they counted, then they flipped over each one individually before they placed it. I saw challengers argue with election judges over how their hands held the ballots (apparently it obstructed their view), or how fast or slow they were sorting — everything was argued about down to the minute details.

Then there was the recounting of ballots numerous times. Although the campaign observers would have the opportunity to view the ballots being counted, and though by this time the ballots might have been counted three times, if there was any discrepancy between what the machine said the vote count was and how many votes were hand-counted, the campaigns would ask for yet another recount. In fact, there were many precincts where the count was different because a ballot that wasn’t able to be read by the machine was counted by hand. But that didn’t stop the campaigns from ordering recount, after recount, after recount. And if the campaign observer lost count, he or she could ask the election judge to start all over even if the election judge hadn’t lost count. So at many tables I wouldn’t be surprised if the ballots were counted three of four times.

In all the 50 challenges I observed, I saw one legitimate challenge, involving a duplicate ballot. A duplicate ballot is one where a person had a ballot mailed to them to fill out, and when it is returned a duplicate of it is filled out on the real ballot that can be read by the machine. In a recount, each half of the duplicate is usually matched up to make sure the duplicate was filled out correctly. The original is saved in a separate envelope and not counted, but the duplicate is counted. In this particular duplicate ballot situation, it was clear in the original that the voter had voted for one candidate but on the duplicate, that vote had not been recorded. I thought to myself: “This is why we have challengers to check for mistakes like that and to ensure that the proper procedure is then followed.”

I don’t want to be completely disparaging of the campaigns or the recount process — not every member of the campaigns mounted such petty challenges. Also, it sounds like the campaigns have agreed to review the challenged ballots after the recount is done before they are sent on to the committee, in order to review them and throw out the frivolous challenges.

Despite all of this recount mess, it also reflects the significance of clear and open elections. The fact that the campaigns are able to ensure that correct process is followed down to the minute detail is incredibly important. Despite the fact that I was getting annoyed with both parties’ challenges and ridiculous requests, I was still glad that they were able to do that. It shows how democracy should and can work when unusual circumstances demand it. At the end of the day I was glad I was a nonpartisan observer and that I could rise above the fray and observe the whole process much more objectively then many of the campaign observers.

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