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Judge sides with Franson, orders removal of 35 ballots

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State House District 8B candidate Mary Franson won a legal decision involving her one-vote victory over Bob Cunniff.

Last Tuesday, Judge David Battey granted Franson's request to declare that "obvious errors" had occurred in the election, which will trigger a process Franson favored: Removing 35 votes at random from three precincts in Alexandria where the mistakes occurred.

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Battey ordered the Douglas County Canvassing Board to inspect the ballots and returns of the affected precincts and correct the error in accordance with Minnesota statutes by discarding the ballots before a pending recount takes place.

Here's how the matter ended up in court:

Douglas County election officials were going over the canvassing results and noticed that 26 voters in Alexandria Ward 1 were given ballots that allowed them to vote in the Franson-Cunniff race when they were supposed to be voting in the neighboring House District 12B race. Both districts voted at the same polling place.

Also, in Ward 5, precinct 2, six voters were given the wrong ballots, allowing them to vote in 8B when they should have been voting in the 12B race.

In addition, in Alexandria Ward 3 there were three more ballots cast than there were signatures on the voting roster.

The 35 votes could loom large since Republican Franson, a first-term legislator, leads in the election by a margin of 10,652 to 10,651 over Democrat Cunniff. An automatic recount is set to take place because of the close outcome.

Judge Battey listened to attorneys representing each candidate at a hearing in Douglas County District Court last Tuesday.

In a nutshell, Franson and her attorney, Reid LeBeau, requested the court to get involved because they believe the Douglas County Canvassing Board lacked the authority on correcting the errors that were made in the election. They wanted the total number of over-votes, 35, pulled at random from the three affected precincts, which they claimed is the proper remedy under state law.

"Simply put, there were more votes than voters in three precincts in the city of Alexandria," said LeBeau.

Cunniff and his attorney, David Zoll, argued that the error in Ward 1 was not just a counting and recording error but involved procedural mistakes made by the election judges (giving ballots to people who should not have been voting in the Franson-Cunniff race).

Cunniff wanted another remedy that would be determined by an election board such as inspecting the ballots, conducting a new election in the affected wards, examining the absentee ballots, etc.

"It's not appropriate to randomly draw from both valid and invalid ballots," Zoll told Battey.

When Judge Battey asked for Douglas County's insights into the matter, County Attorney Chad Larson said that upon discovering the errors, the county's goal was to make the remedy process transparent and open to the public.

Rather than certifying the results or randomly throwing out ballots to reconcile the over-votes as outlined in state law, the county opted to bring the matter before a district judge where both candidates could state their case, Larson said.

In his order, Battey noted the following:

"While the remedy in this situation may not be the ideal solution to the problem, the court notes that it has limited options. Although it can reasonably be argued that the discrepancy in votes resulted from errors in administration of the election or distribution of ballots, the court finds that the discrepancy ultimately resulted in counting and recording errors."

Republicans think Battey's decision gives them an advantage to winning the tight election.

House Minority Leader-elect Kurt Daudt, R-Crown, said the ballots to be removed come from precincts in which Cunniff did well, which means chances are that he could lose votes.

Here are the election night results from the affected precincts:

Ward 1 - Cunniff 753 votes, Franson 603.

Ward 3 - Cunniff 754 votes, Franson 535.

Ward 5 - Cunniff 570 votes, Franson 392.

The State Canvassing Board is scheduled to convene next Tuesday in St. Paul and will order a recount if the winning margin from the certified results remains within a half percentage point.

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Capitol Reporter Don Davis contributed to this story.

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