Integrity of recount process at stake, plaintiffs contend

Published 12:00 am Thursday, December 19, 2002

There is no question that overturning the election result and keeping Grace Schwab at the state Capitol is the ultimate goal of a Republican-sponsored lawsuit filed Tuesday. But, the attorney in charge thinks clearing up the controversy over the missing 17 ballots in court will convey more than just who won the race.

&uot;The broader issue here is, ‘what can a vote do,’&uot; said Fritz Knaak, an attorney for petitioner Tom Purcell of Austin. &uot;(The State Canvassing Board) actually created votes. That is what remains perhaps the most troubling legacy of this entire process. This is the prime reason for us to go forward. This has to be addressed. And, there has to be a legal interpretation.&uot;

The court would focus on the Canvassing Board’s decision to apply different standards on handling the missing ballots for each candidate.

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The board took the recounted numbers for Schwab while going back to the original tally for DFL opponent Dan Sparks, which could be a departure from case law which adopts original counts in case ballots are defected.

A dilemma for the Republicans is that Schwab would lose 13 votes if the recount is disregarded for the precinct in question, Austin Ward 2, Precinct 1. The Attorney General’s Office, which recommended the board’s decision, thought awarding the 13 votes to Schwab would be more just.

The court would also go through 32 contested ballots again. The Canvassing Board gave 12 of those votes to each candidate and disregarded eight.

Knaak pointed out the board’s judgments in question include three overvoted ballots awarded to Sparks, which were disregarded in the original tally because of multiple marks. &uot;The statute is clear that you cannot count votes like that. But, they were given a creative interpretation.&uot;

&uot;I know it sounds awful a lot like sour grapes … But it is the time to address the matter. This cannot happen again.&uot;

Shortly, both parties in the lawsuit will receive a list of potential judges to preside over the case. Knaak and Sparks’ lawyer, Brian Rice, will select a judge by taking turns eliminating judges until only one remains, just like in jury selection.

The judge is required to rule on the case and report the result to the secretary of the state Senate by the first day of the legislative session, which is Jan. 7. The decision can be appealed to the state Supreme Court within 10 days after the ruling.

The contestant, Purcell in this case, has to pay the court costs if the contestee, Sparks, succeeds. Even if the court overturns the result, Sparks would not have to bear the cost.

The law waives the financial obligation of the contestee if they lose because of an error in the counting of ballots or any other irregularity in the election procedure. If that happens, it will be the election jurisdiction responsible for the errors &045; the City of Austin and possibly Mower County &045; that is responsible for the cost.