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November 1, 2002 8:50 a.m. Minnesota’s Re-Voting Scheme The state supreme court lays out a blueprint for lawsuits.

n Minnesota today, both Democrats and Republicans say they are satisfied with the state supreme court's ruling in a lawsuit over absentee voting in the race for the Senate seat held by the late Paul Wellstone. But in fact, with the election just four days away and little time left for absentee voting, the court's brief ruling — which gives every absentee voter who has sent in a ballot a chance to re-vote — might well become a recipe for confusion. And if the race between Republican Norm Coleman and Democrat Walter Mondale is close, the ruling could create new grounds for legal challenges after the voting.

Democrats filed the suit this week in an effort to stop all absentee voting in the Senate race. They asked that old absentee ballots be thrown out and new ballots bearing Mondale's name be printed and sent to voters. Since state officials had already announced a workable plan which would allow voters who had cast absentee votes for Wellstone to vote again, the Democratic lawsuit seemed more about political maneuvering than making sure voters were not disenfranchised. Historically, absentee voters in Minnesota have tended to favor Republicans over Democrats, so suppressing absentee results would have likely benefited the Democratic candidate.

The court ignored that request. Instead, the justices simply ordered state election officials to prepare a supplemental ballot for the Senate race — something they were already required to do by law — and send that supplement, along with a clean copy of the regular absentee ballot, to any voter who requests one.

On its face, the decision seems fairly simple. But on closer examination, the key paragraphs of the court's ruling outline a somewhat complicated balloting arrangement, one that might result in disputes lasting far beyond Election Day:

If a voter has already cast a regular absentee ballot and requests, in any manner, an official supplemental ballot, the county election official shall provide the official supplemental ballot and a second regular absentee ballot, as a set, by mail...or in person if requested in person, to be utilized by the voter. Instructions shall accompany the ballot set clearly stating that if the voter wishes to vote in the races on the regular ballot the second regular absentee ballot must be completed and returned, and that the second regular absentee ballot will replace the first regular absentee ballot cast by the voter.

If a voter casts two regular absentee ballots, the ballot with the later date on the return envelope shall be counted.

If a voter casts a regular absentee ballot but does not cast an official supplemental ballot, that ballot shall be counted in the same manner as if the vacancy had not occurred.

If a voter casts a second regular absentee ballot and an absentee official supplemental ballot, the second regular absentee ballot shall be counted for all races except the office of United States Senator. The official supplemental ballot shall be counted for the office of United States Senator.

In the ruling, the court has given all absentee voters a second chance at voting. With the supplemental ballot, they may change their vote in the Senate race, and with the new regular absentee ballot, they may change their votes in any of the other races on the ballot as well.

In addition, the decision suggests the justices did not fully appreciate the enormous impracticality of the re-voting scheme. It is now Friday morning. If voters receive new ballots by mail — that is, if the mail gets them there on time — they must send the ballots back to arrive no later than Tuesday. It seems reasonable to say that if a significant number of voters attempt to do that, there will be many late ballots — and many complaints, perhaps in court.

Despite those flaws, both sides expressed happiness with the court's ruling. Democratic chairman Mike Erlandson says the court "ruled the right way for Minnesota voters." Alex Vogel, general counsel of the National Republican Senatorial Committee, says, "I'm pleased. If they want to send out new absentee ballots to those who request them, that's fine with me. The key is that as many people as possible have a chance to vote."

But some other Republicans remain wary. "I'm concerned that there is a change, because there's another possibility for a lawsuit," says Sarah Janacek, a GOP strategist in Minnesota. For example, Janacek says, a Wellstone voter might call an election office today to ask for another ballot. Through some problem — perhaps with the election office, perhaps with the Post Office — the voter might not receive the ballot, and that might be grounds for a challenge later. "Once you challenge one thing, you can challenge everything," Janacek says. "If it's a close race, this is just one more way to try to undo it."