Sen. Grace Schwab conceded defeat Tuesday to DFLer Dan Sparks in a race that stretched two months past Election Day and got hung up over ballots burned by an election judge.

Schwab, R-Albert Lea, and her supporters declined to appeal a district judge’s ruling a day earlier that Sparks won by five votes. She said it’s not in the best interest of her district to keep the outcome tied up in court.

&uot;I think this district has been patient for long enough,&uot; she said in a written statement. &uot;They deserve a state senator, and I intend to step out of the way and urge my caucus to do the same, so that they can have unopposed representation starting today.&uot;

Sparks was sworn in as state senator on Tuesday. He said his transition time has been shorter than most freshman senators, but said he wants to &uot;get to work.&uot;

&uot;It’s going to be exciting,&uot; he said.

With Sparks seated, DFLers control the Senate by a narrow 35-32 margin, including an Independence Party senator who plans to side with the GOP.

Sparks was the winner of the election by five votes, Anoka County District Court Judge Joseph Quinn ruled Monday. The decision could have been appealed to the state Supreme Court, and Republican attorney Fritz Knaack told the AP Monday that such a move was likely.

The final election result, according to Quinn, is 15,091 votes for Sparks and 15,086 for Schwab.

The State Canvassing Board had awarded 12 votes for each candidate out of 32 contested ballots. It also assigned Sparks an additional eight votes, the votes Sparks lost in the recount in Austin Ward 2, Precinct 1, assuming they were among 17 missing ballots &045; which, it was later learned, were burned by an election judge.

For the missing ballots’ precinct, Quinn decided to adopt the recount result, reversing the canvassing board’s decision to count eight of the 17 missing ballots.

During the two-day hearing last week at the Mower County Courthouse, Sparks’ attorney, Brian Rice, contended that case law should direct the court to disregard the missing ballots and go back to the original count from election night, as the canvassing board had done.

Quinn dismissed it, stating in his conclusion, &uot;To count these (17 missing) votes under the circumstances, would create cynicism in this generally laudable exercise in the democratic process.&uot;

Republican attorney Fritz Knaak, on the other hand, argued that the court should punish Sparks by assigning all of the 17 ballots to Schwab, because the election judge who burned the ballots, Jeanette Dennison, was a DFLer.

But Quinn disagreed, saying, &uot;whether the DFL election judge chose ballots with votes for Republican or DFL candidates is only speculation.&uot;

&uot;Where there is an official hand count of ballots, and ballots have been destroyed, a citizen’s choice in an election contest cannot be imputed, based on probability, or an evidential penalty. None of the 17 intentionally destroyed ballots may be counted for either party.&uot;

Judge Quinn concluded 15 contested ballots were for Sparks and 13 for Schwab, which changed the margin from three after the recount result to five finally.

Of 32 contested ballots, 15 were considered potential votes for Sparks and 17 for Schwab.

Four potential Schwab votes &045; three ballots that were not tallied in the original count in Albert Lea Ward 3, Precinct 1, and one where the voter’s intent was questioned in Sumner Township, Fillmore County, were not counted.

&uot;No matter how you counts those ballots, Dan Sparks won,&uot; Rice said. &uot;Slice it, dice it, peel it, fry it, bake it, burn it, it all comes up Sparks. This is the fourth time now that we have counted the ballots and Dan Sparks won. You’d have to come up with the most convoluted view to say that Grace Schwab won.&uot;

&uot;For four times the votes were scrutinized in this election. And we’ve been ahead four times,&uot; said Sparks. &uot;My major concern is that we make sure that the people in the District 27 have representation in what promises to be a challenging session.&uot;

Dennison testified Friday that she burned the 17 ballots after they were set aside on election night because they were cast for the late Sen. Paul Wellstone. Dennison said she had overheard the city clerk say to take the Wellstone ballots &uot;and get them out of here.&uot;

Dennison, who received immunity in the case, said she put the 17 ballots in a bag, took them home and burned them with her junk mail. She did not look at the ballots to see whom the votes were cast, she testified Friday.