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Legacy Content / RULES OF THE GAME

Your State Could Be Minnesota

The Disputed Senate Race Highlights Problems With The Way States Count Absentee Ballots

June 22, 2009

The chances are looking increasingly slim that Republican Norm Coleman will ever win his battle with Democrat Al Franken over Minnesota's contested Senate seat.

But Coleman's seven-month legal odyssey, however fruitless for him, has shed light on an important problem that isn't limited to Minnesota: absentee ballots.

Coleman's argument that thousands of absentee ballots were improperly rejected may not have convinced the state Supreme Court to reverse Franken's 312-vote win following a recount and trial. But there's no question that absentee ballots were badly mishandled in Minnesota, and possibly in other states as well.


The Coleman-Franken race devolved into a protracted legal contest in part because election officials did not consistently follow rules for how to count absentee ballots.

Absentee ballots were "definitely the Achilles' heel of Minnesota," said Edward B. Foley, a professor at Ohio State University's Moritz College of Law, who predicts that errors in counting absentee ballots could become one of the next big problems plaguing the nation's election system. (A related trouble spot on the horizon, according to Foley, is the erratic counting of provisional ballots.)

Absentee ballot use rose in the 2008 election, fueled by high interest in the presidential race and anticipated long lines. Nearly 30 states now allow absentee voting without an excuse such as medical or travel reasons. Early voting is also on the increase.

As states have embraced absentee voting, however, reports of problems have rolled in. Voters in Colorado, Florida and Ohio had their ballots rejected because of errors such as failing to include a copy of their ID with the ballot, forgetting to sign or signing in the wrong place, and failing to seal an inner envelope.

In Minnesota, the narrow margin between Coleman and Franken devolved into a protracted legal contest in part because state election officials did not consistently follow rules for how to count absentee ballots. For example, Minnesota election rules require voters casting absentee ballots to receive the authorization of a witness who can attest to the ballot's secrecy.

"People definitely got tripped up on that requirement," noted Foley. Adding to the confusion is a rule that if an absentee voter is casting a ballot from within the state, the witness must be a registered Minnesota voter. But some voters ended up turning to someone not registered to vote.

Some election officials counted those votes anyway, while others interpreted the rules more stringently. This prompted the complaint from Coleman that the absentee votes should have been counted the same way statewide. He argued that as many as 4,400 rejected absentee ballots were properly cast. He also maintained that the less-stringent standard should be applied to all ballots.

"It is a huge problem if rules are unclear," said Foley. "But it's not good enough to have clear rules. The local officials have to be willing to enforce them."

The growing use of absentee ballots poses a challenge for state election officials who now are processing votes through multiple channels, said Doug Chapin, director of election initiatives at the Pew Center on the States.

"Increasingly, Americans are using absentee and early voting to choose their own Election Day," said Chapin. "And the challenge for states is... to make that work within their existing and often limited resources."

The problems associated with absentee voting are especially acute for those in the military or living overseas, according to Pew research. Ballots tend to be sent out too late for voters to fill them in and sent back in time for Election Day, Pew has reported.

The center is working on crafting a uniform model law to ensure that ballots reach military and overseas voters early enough. The center is also working with both governmental and nongovernmental authorities to update voter registration lists, so that absentee ballots actually reach voters. Similar approaches could help states process absentee ballots for non-military voters, as well.

"If we can make the process work well for military and overseas voters who pose the greatest challenge, I think we're in a very good position to improve the experience for all voters, domestic and abroad," said Chapin.

If states don't take action, Congress may step in. The House Administration Committee cleared two bills on June 10 that together would expand and regulate absentee voting. Authored by Rep. Susan Davis, D-Calif., the bills would allow no-excuse absentee voting nationwide (the Universal Right to Vote by Mail Act) and give states grant money ($3,000 per jurisdiction) to establish absentee ballot tracking systems (the Absentee Ballot Track, Receive and Confirm Act).

"Most of these people are not rejected because they were substantively ineligible for voting," observed Foley. "If they had jumped through the right hoops at the right time, in the right way, [they] would have been able to participate."

The situation is frustrating for voters -- and occasionally, for candidates as well. Just ask Coleman.

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