LOCKRIDGE GRINDAL NAuEN P. L. L. P.

Attorneys at Law
www.locklaw.com

MINNEAPOLIS

WASHINGTON, D.C.

Suite 2200 100 Washington Avenue South Minneapolis, MN 55401-2179 T 612.339.6900 F 612.339.0981

Suite 210 415 Second Street, N.E. Washington, DC 20002-4900 T 202.544.9840 F 202.544.9850

David J. Zoll

November 19, 2012

REPLY TO MINNEAPOLIS

Direct: 612-596-4028 djzoll@locklaw.com

FAX NO. 320-762-8863 Douglas County Court Administrator Douglas County Courthouse 305 Eighth Avenue West Alexandria, MN 56308
RE: In the Matter of Mary Franson, Candidate for House of Representatives District 8B, Petitioner - Case No. 21-CV-12-1973

Dear Court Administrator: Enclosed for filing in the above-referenced matter are the following pleadings: 1. Response of Robert Cunniff to Application Pursuant to Minn. Stat. 204C.39 for an Order Determining an Obvious Error; and 2. Affidavit of Service.

Also enclosed is my firm check in the amount of $345 to cover the $320.00 response filing fee and $25.00 fax filing fee. Pursuant to Minn. R. Civ. P. 5.05, we will retain the original pleadings in our file. If you have any questions regarding this filing, please do not hesitate to contact me. Thank you. Very truly yours, AL NAUEN P.L.L.P.

Enclosures c: R. Reid LeBeau, II (Fax No. 651-644-5904) Chad M. Larson, Douglas County Attorney (Fax No. 320-762-3860) Robert Cunniff Charles N. Nauen

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STATE OF MINNESOTA COUNTY OF DOUGLAS

DISTRICT COURT SEVENTH JUDICIAL DISTRICT

In the Matter of: Mary Franson, Candidate for House of Representatives District 813, Petitioner.

Case No. 21-CV-12-1973 AFFIDAVIT OF SERVICE FOR RESPONSE OF ROBERT CUNNIFF TO APPLICATION PURSUANT TO MINN. STAT. 204C.39 FOR AN ORDER DETERMINING AN OBVIOUS ERROR

STATE OF MINNESOTA COUNTY OF HENNEPIN

) ) ss. )

Janet Treiber, being first duly sworn, on oath deposes and states that on the 19th day of November, 2012, she served via fax a copy of the attached Response of Robert Cunniff to Application Pursuant to Minn. Stat. 204C.39 for an Order Determining an Obvious Error upon: FAX NO. 651-644-5904 R. Reid LeBeau, II Jacobson Buffalo Magnuson Anderson & Hogen P.C. 335 Atrium Office Building 1295 Bandana Boulevard St. Paul, MN 55108 FAX NO. 320-762-3860 Chad M. Larson Douglas County Attorney 305 -8 th Avenue West Alexandria, MN 56308

Janet Treiber Subscribed and sworn to before me this th day of Novemb r, 2042.

tary Public

J)

Notary Public-Minnesota
My Commission Expires Jan 31, 2015

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STATE OF MINNESOTA COUNTY OF DOUGLAS

DISTRICT COURT SEVENTH JUDICIAL DISTRICT

In the Matter of: Mary Franson, Candidate for House of Representatives District 813, Petitioner.

Case No. 21-CV-12-1973 RESPONSE OF ROBERT CUNNIFF TO APPLICATION PURSUANT TO MINN. STAT. 204C.39 FOR AN ORDER DETERMINING AN OBVIOUS ERROR

INTRODUCTION Petitioner Mary Franson asks this Court to issue an Order which ultimately may lead to the disenfranchisement of dozens of voters who, through no fault of their own, cast ballots for the wrong precinct. Petitioners Application must be denied. First, the alleged error in the conduct of the November 6 General Election is not an error in the counting and recording of the votes and, therefore, is not within the scope of Minnesota Statutes, Section 204C.39. Second, even if the alleged error did involve the counting and recording of the votes, Minnesota Statutes, Section 204C.20 does not provide a remedy in this case. BACKGROUND The race between Petitioner Mary Franson and Robert Cuimiff for House District 8B is separated by a single vote and, next week, will proceed to an automatic recount. On November
15, 2012, the Douglas County Canvassing Board met to complete its canvass of the November 6,

2012 general election which included the Douglas County precincts within House District SB. During the canvass, the Board discovered that the number of ballots cast in three precincts exceeded the number of voters who signed the precinct roster. See Exhibit A. With

respect to two precincts, Alexandria Ward 1 - Precinct 2 (26-vote discrepancy) and Alexandria Ward 5 - Precinct 2 (6-vote discrepancy), the discrepancies resulted from the fact that "some

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voters were given the wrong ballots at shared polling locations." See Exhibits A and B. There is no readily apparent explanation for the 3-vote discrepancy in Alexandria Ward 3. By majority vote, the Douglas County Canvassing Board determined that "the election judges have made an obvious error in county or recording votes." See Exhibits A and B. On

November 16, 2010, Mary Franson applied to this Court for an order determining that an obvious error has been made and directing the Douglas County Canvassing Board to inspect the ballots and returns of the precincts and correct the errors in accordance with Minnesota Statutes, Section 204C.20. ARGUMENT A. The Alleged Error is not an Obvious Error in the Counting and Recording of the Votes. Minnesota Statutes, Section 204C.39 permits county canvassing board to identify "an obvious error in the counting or recording of the votes" and provides a process by which such errors can be corrected. Minn. Stat. 204C.39; Coleman v. Ritchie, 762 N.W.2d 218, 226 (Minn. 2009). Therefore, the threshold issue in this case is whether the alleged error involves the "counting or recording of the votes." It does not. As stated by Petitioner, "[the alleged error] was the result of errors by city election officials who used a shared polling place for two precincts that were in different legislative districts. Voters who were not legally entitled to vote in the District 8B race were given ballots for the wrong district, even though they signed the roster for the precinct in which they lived."). Petitioners Application at 2. The distribution of ballots is governed by Minnesota Statutes, Section 204C.13, subdivision 1 which provides: "[w]hen the election judges are satisfied that an individual is eligible to vote in that precinct, the election judge in charge of the ballots shall give the voter

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only one ballot of each kind that is to be voted upon at that precinct."

Minn. Stat. 204C.13,

subd. 1 (emphasis added). The alleged error in this case is not an error in the counting and recording of the votes which may be addressed pursuant to Section 204C.39. It is a failure to follow the process established in Section 204C. 13 for the distribution of ballots and Petitioners Application fails as a result. B. Minnesota Statutes, Section 204C.20 does not Apply in this Case. Minnesota Statutes, Section 204C.20 defines the number of ballots to be counted in an election and specifies the process to be followed when there are excess ballots. First, the election judges determine the number of ballots to be counted "by adding the number of return envelopes from the accepted absentee ballots to the number of signed voters certificates, or to the number of names entered in the election register." Minn. Stat. 204C.20, subd. 1. Absentee ballots are no longer counted at the precinct level. See In re 2010 Gubernatorial Election, 793 N.W.2d 256, 258 n. 1 (Minn. 2010). Accordingly, the total number of ballots to be counted at each polling location is "the number of signed voters certificates [or] the number of names entered in the election register." Id. After determining the number of votes to be counted, the election judges remove the ballots from the box and, "[w]ithout considering how the ballots are marked, the election judges shall ascertain that each ballot is separate and shall count them to determine whether the number of ballots in the box corresponds with the number of ballots to be counted." Id. Minnesota

Statutes, Section 204C.20 specifies the process to be followed in the event that there are excess ballots in the box. This statute is intended provide a process to guard against more ballots being

This does not leave Petitioner without a remedy. Alleged errors which do not fall within the scope of Section 204C.39 may be addressed in an election contest filed pursuant to Chapter 209. Coleman v. Ritchie, 762 N.W.2d 218, 230 (Minn. 2009). 3

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counted than eligible voters voting. 261 (Minn. 2010).

See In re 2010 Gubernatorial Election, 793 N.W.2d 256,

The Board of Canvass Report of Obvious Errors addresses the vote totals from three polling locations encompassing five precincts. Only one polling location, Alexandria Ward 3, includes any excess ballots. Alexandria Ward 1 - Precinct 1 and Alexandria Ward 1 - Precinct 2 both vote at Lake Community Church, 1751 County Road 44 NW, Alexandria, MINT 56308. See http://www.co.douglas.mn.us/AudTreas/Polling.htm . According to the Board of Canvass Report of Obvious Errors, there were 1,372 signatures in the rosters for these precincts and 1,371 ballots cast at the polling location. See Exhibit A. Similarly, Alexandria Ward 5 - Precinct 1 and

Alexandria Ward 5 - Precinct 2 both vote at Alexandria City Hall, 704 Broadway, Alexandria, MN 56308. See http://www.co.douglas.mn.us/AudTreas/Polling.htm . According to the Board of Canvass Report of Obvious Errors, there were 1,001 signatures in the rosters for these precincts and 1,001 ballots cast at the polling location. exceed the number of voters at either location. 2 To support her claim that there are excess ballots in Alexandria Ward 1 - Precinct 2 and Alexandria Ward 5 - Precinct 2, Petitioner assumes that the determination of whether there are excess ballots pursuant to Minnesota Statutes, Section 204C.20 must be completed at the precinct level. This is not correct. The statute is not restricted to a precinct-by-precinct application. With a shared polling location, there is one group of election judges and one ballot box. Section 204C.20 provides that these election judges must determine whether the total number of ballots in the ballot box matches that total number of signatures in the rosters. Nothing in the
2

See Exhibit A. The number of ballots does not

The Board of Canvass Report of Obvious Errors indicates that there were three more ballots than signatures in the roster for Alexandria Ward 2. 4

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plain language of the statute suggests that this comparison must be completed on a precinct-byprecinct basis for shared polling locations. Rather, for shared polling locations, the determination of whether there are excess ballots must be completed for the entire polling location. This application of Section 204C.20 serves the States interest of preventing ballot stuffing (the number of ballots counted for each polling location will match the number of signatures in the roster) while preserving the individual right to vote (a ballot will not be invalidated simply because an election judge mistakenly provides a voter with the wrong ballot). This is the only interpretation of Section 204C.20 which balances the competing State and individual interests. Moreover, Section 204C.20 presumes that the process for distributing ballots established in Section 204C. 13 was followed and that only voters whom the election judges were satisfied were eligible to vote in the precinct were provided ballots for the precinct. Where excess ballots were cast by eligible voters, it may be appropriate to randomly withdraw ballots from the pool of ballots cast by eligible voters in order to reconcile a discrepancy between the roster and the number of ballots cast. However, where election judges failed to follow the process in Section 204C.13 and voters were given the incorrect ballots, the random removal of a mix properly and improperly cast ballots would serve to disenfranchise voters while doing nothing to address the underlying error. Indeed, it is impossible to know the extent to which voters in Alexandria Wards 1 and 5 voted in the wrong precinct because any number of off-setting errors could have been made (e.g., 76 voters residing in District 12B could have been provided ballots for District 8B and 50 voters residing in District 8B could have been provided ballots for District 12B resulting in a net discrepancy of 26 additional votes for District 813).

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The procedures in Section 204C.20 do not apply in this case and Petitioners Application must be denied.
CONCLUSION

The alleged error in the distribution of ballots to voters is not an error in the counting and recording of the votes and, therefore, is not within the scope of Minnesota Statutes, Section 204C.39. Moreover, even if the alleged error did fall within the scope of Section 204C.39, the remedies under Section 204C.20 are inapplicable. Accordingly, Robert Cunniff respectfully requests that the Court deny Petitioners application with respect to Alexandria Ward 1 - Precinct 2 and Alexandria Ward 5 - Precinct 2.

Date: November 19, 2012

E GRINDAL NAUEN P.L.L.P.

am

121216 David Joll 0330681 .Z 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: 612-339-6900 Facsimile: 612-339-0981
ATTORNEYS FOR ROBERT CUNNIFF

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Board of Canvass Report of Obvious Errors Votes Cast In November 6, 2012 General Election
Precinct Code 0005 0007 0018 0025 0027 precinct Name Alexandria Word 1- Precinct S Alexandria Ward I - PrecInct 2 Alexandria Ward 3 Alexandria Ward S. Precinct 1 Alexandria Word S - Precinct 2 P Signatures on Roster 198 1174 1114 97 904 #Voted # Ballots Ballots Over/Short 171 1200 1117 91 910 -27 26 3 -6 6 Voters from WI-RI signed WI-Pt roster, given/voted W5-P2 ballot Voters from W5-P1 signed W5-P1 roster, given/Voted W5-P2 ballot Districts Affected Notes: Voters from WI-PI signed W1-P1 roster, gtven/voted WI-P2 ballot Voters from WI-Pi signed WI-PI roster, given/voted WI-PZ ballot Senate 12 8 8 12 S 2 Six (6) Voters cost ballots in these districts In error (were given wrong ballot style)

House 12b Bb

Commissioner 2 4 Twenty-Six (26) Voters cast ballots In these districts In error (were given wrong ballot style) Three (3) more ballots cast for ALL offices on this ballot style vs. number of voters who signed the roster

Candidates Affected:
Senate District 8: Bill ingnbrlgtsen Dan Skogen vote spread State Representative (Howe) District Bb: Mary Prsnton Bob Cuenhff vote spread County Commissioner District 4: Charlie Meyer Paul C. Anderson tote spread County Commissioner District 5: Dan Olson Carol Wetter noteopread Statewide Results 22,712 20,513 2,499 Statewide Results 10,852 10,651 1 County Results 2,157 1,697 460 County Results 1,534 1,518 18

Notes:
only offices and ballot questions that differ between W1-P1 and W1-P2 ballots ore: Ic Senator, Slate Represenative, and County Commissioner other offices and ballot questions are the same on bath ballot styles) only offices and ballot questions that differ between W5-P1 and W5-P2 ballots are: :e Senator, State Reprosenativn, and County Commissioner other offices and ballot questiansare the name on both ballot styles) Wand 3 ballot have 3 more votes cast vs. signatures on the roster

35 more ballots cast In this district en. signatures on rosters

35 more ballots cast In this district vs. signatures on rosters

26 mere ballots cast In this districts,, signatures an rosters

6 more ballots cast in this district v& signatures on rosters

The undersigned members

of the Douglas County Canvassing Board hereby declare by rna)oilty v

hat the election judges have made as obvious error In counting or recording votes asset forth herein

DATE:

I IjI 5 I

__________________________ Dan" 5, M (City alA ndrle)

Rhonda)oi District Court Administrator

Charlene Roseeow, Douglas county AudItor-Treasurer

(J

MJ
of sold County on November iS, 2012

CERTIFICATION
I hereby certify thatthe above Ito true and correct copy of a Board of Canvass Report of ObvIous Errors duly determined by the Douglas County Board of Canvass

(SEAL)

Charlene Rnsenow, Douglas CoannyAudltnr-Treasra-er

OMi ?

QQMA)

Douglas County Canvassing Board 305 8th Avenue West Alexandria, MN 56308

November 15, 2012 Bob Cunniff 755 South Geneva Golf Club DR NE Alexandria MN, 56308

Re:

NOTICE OF DETERMINATION OF OBVIOUS ERROR

Dear Mr. Cunniff: The Douglas County Canvassing Board convened today and pubilcally canvassed the 2012 general election returns by reviewing the abstract and write-In reports provided by the Douglas County Auditor. Following the review, the Board determined, by majority vote, that the election judges have made an obvious error In counting or recording votes as more fully set forth in the attached Report of Obvious Errors. In sum, It is apparent that some voters were given the wrong ballots at shared polling locations. Pursuant to Minn. Stat. 204C.39, you are hereby notified of this determination. The purpose of this Notice is to provide you with the opportunity to apply, without unreasonable delay, to the Douglas County District Court for relief should you so choose. You are further notified of the Canvassing Boards intent to reconvene at 9:00 AM on November 21, 2012. At that time, and In the absence of a court order directing the Board otherwise, the Board intends to rectify the obvious errors by conducting an after-the-fact reconciliation of the ballots in a manner consistent with Minn. Stat. 204C.20. Please be advised that time is of the essence due to the meeting of the State Canvassing Board on November 27, 2012. Should you obtain a court order directing the Board otherwise, the same should be served at or before 4:30 PM on November 20, 2012.

ojw-,,,
Charlene I Rose now Douglas County Auditor/Treasurer Attachments: Board of Canvass Report of Obvious Errors Ballot. Proofs

Sincerely,

1ilII