Trial over Minnesota House race that could swing control of chamber focuses on lost ballots

A Minnesota judge saw a challenged state House race boiled down to its essence as an election trial opened Monday.

Attorneys for the Republican challenger and DFL victor framed the case in competing terms: Would validating the election be fair to 20 or so Shakopee residents whose ballots went missing in a race decided by fewer votes than that or would tossing out the entire race disenfranchise more voters because special elections tend to elicit low turnout?

How that gets answered is important not only for DFL Rep. Brad Tabke and GOP candidate Aaron Paul, separated by just 14 votes following a recount. But it also matters to the control of the state House, which is on course to be tied 67 seats piece for the two major parties starting in January.

Scott County officials announced last month that a batch of 20 absentee ballots all cast in the same Shakopee precinct on the same day were accepted in October but not counted. The ballots and their secrecy envelopes were likely thrown away accidentally between the time they were submitted and Election Day, according to a preliminary investigation. They said the ballots are unlikely to be recovered in a way that could prove they had not been tampered with.

“Those votes are gone and were never counted,” Paul’s attorney, Reid LeBeau II said in an opening statement. “Any result which fails to address this fatal defect is terminal to the certainty and confidence in the basic expectations we all have in our electoral system.”

Tabke’s attorney David Zoll said invalidating the election would do more harm to more voters.

“He says we should disregard the votes cast by more than 20,000 residents of House District 54A and put this contest to a special election, and put this contest to a special election where history shows only a fraction of the voters will cast their ballots and have their voices heard,” Zoll said.

At the outset of testimony on Monday, Scott County Election Administrator Julie Hanson walked through how officials came to discover the ballots were missing and the investigative steps taken in response.

She said a city clerk thought ballots had been properly accounted for when instead they had been disposed of — presumably inside their secrecy envelope — and sent for recycling. Hanson described it as a disappointing breach of protocol because all materials, including the envelopes, are supposed to be kept for a specific period of time under state and federal law.

“In Shakopee Precinct 10, there was a difference of 20, and that is very unusual,” Hanson said. “We exhausted all attempts to locate the ballots, and we determined that they were validly cast by valid voters … and that we had never received the ballots here, and that they had never been run through a tabulator.”

Hanson said the inquiry has helped uncover the identities of the voters connected to the ballots but not with full certainty.

How to handle known information connected to those ballots was on the mind of the judge, attorneys and others before testimony began.

On Thursday, the Scott County Attorney’s Office informed Judge Tracy Perzel that it believes it has identified the voters who cast the missing ballots, although not with 100 percent certainty. The office is seeking a way to share more details with the parties to the case but not in a way that could threaten the privacy of the voters.

“The county is concerned that given the small pool of names it has identified, making those names publicly available would infringe on the voters’ rights to anonymity in their voting (if for instance vote totals change based on court decisions) and that they could be subjected to unwanted attention, contact or even harassment,” assistant county attorney Jeanne Andersen wrote in a letter to the judge.

Perzel issued an order late Sunday restricting identifying information about the voters.

“We live in times where political division has devolved increasingly to threats of violence and actual violence,” Perzel wrote. “The political climate is simply too charged to allow public identification at trial of these lost-ballot voters, some of whom may testify for Paul and others of whom may testify for Tabke, as reflected on the parties’ witness lists.”

Attorneys and Perzel have a classified list of voter identities but referred to them exclusively by their corresponding number on the list during Monday’s testimony. Six voters who had cast ballots that were discarded before they were counted said they were frustrated and disappointed that their ballots were thrown away.

“I found it very unacceptable that this was done with my ballot, that it never made it through,” a person described only as “Voter No. 14” told the court. “I want my voice to be heard about this instance that shouldn’t have happened.”

On the challenge in general, Tabke and his attorneys argued that the results of the election should be allowed to stand since it is unlikely that nearly all of the missing ballots would be cast for Paul, changing the election’s outcome.

Another case is also under review in Roseville. Republican Paul Wikstrom challenged the result in that race, alleging that Democrat Curtis Johnson didn’t abide by state residency requirements.

Ramsey County District Court Judge Leonardo Castro has taken the case under advisement and could issue findings or an order at any point.

A ruling that favors Republicans in either case could shift the chamber to GOP control. DFL and GOP leaders said they were planning for a power-sharing agreement when the legislative session starts next month, with members from each party evenly represented on committees. But those talks are on hold as the court cases advance.

Johnson’s legal team filed a petition Friday saying it wants an appeals court to consider whether Wikstrom’s election contest came too late. It’s similar to an argument made to Castro, who allowed the case to move ahead.

In the petition, Johnson’s attorney Rachel Kitze Collins said if Wikstrom’s side had suspicion or knowledge of residency doubts as much as six months before the election it should have brought a case sooner. The attorney said the case “will have major implications for residency challenges going forward.”

And, Kitze Collins wrote, “The court should not countenance the monthslong delay in bringing a challenge until it was apparent that the contest could upset the balance of power in the Legislature.”

Even after the courts make their determinations, the matter might not be fully resolved. The Minnesota Legislature is the final arbiter of member qualifications. There could be a challenge to the seating of Johnson and Tabke, if their election wins stand up in court.

If it comes to that, they would not be able to vote on their own standing, according to a widely read interpretation of state law.

The trial in Scott County reconvenes Tuesday.

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