The recent decision by the Minnesota Supreme Court regarding the counting of improperly rejected absentee ballots in the Minnesota Senate race has confused and dismayed some members of the blogosphere. A typical reaction was posted at TPM:
In theory, the majority opinion did a lot of good for Franken by requiring some kind of process to count votes. But in practice, this could turn out to net very few new votes for the reason that they required the consent of both campaigns to any such votes being counted. And that means the Coleman campaign, which vociferously opposes counting these votes at all, will have veto power over any single vote getting counted.
http://tpmelectioncentral.talk…
Indeed, much of the uproar is directed at the court’s order that election officials and the campaigns mutually agree that an absentee ballot envelope was improperly rejected before the ballot can be counted in this round of proceedings (the ballot is only unsealed after the parties’ agreement). For example, Nate at 538 writes:
2. Instead, the two candidates, the Secretary of State, and the county auditors and canvassing boards should implement a process for identifying and counting wrongfully rejected absentee ballots. But — and here’s the kicker — both of the candidates and the local elections officials must mutually agree that any given absentee ballot has been rejected in error. If such a consensus emerges about a particular ballot, it will be opened, counted, and the revised results will be forwarded to the state’s Canvassing Board.
…
The process established by the Supreme Court is likely to be contentious and cumbersome. The sheer number of parties it involves in the process, when coupled with the lack of guidance it provides to them, creates an environment in which fatigue and partisanship are likely to prevail over Minnesota Nice. The most burdensome part of the process, of course, is the requirement that each individual ballot must be mutually agreed upon to have been rejected in error before it is opened and counted.
http://www.fivethirtyeight.com…
These reactions strike me as more than a tad melodramatic. In fact, while the court’s decision probably introduced a lot more delay into the process, ultimately I think that the decision will be beneficial to Franken and that there is less room for troublemaking than some have implied.
The basis for my conclusion, as well as the source of most of the confusion about this opinion, is paragraph number 3 of the court’s order. It states:
Because previously rejected absentee ballots that all agree were improperly rejected should be counted, and in light of the fact that the State Canvassing Board has not certified the final results of the recount, we order candidates Norm Coleman and Al Franken and their campaign representatives, the Secretary of State, and all county auditors and canvassing boards to establish and implement a process, as expeditiously as practicable, for the purpose of identifying all absentee ballot envelopes that the local election officials and the candidates agree were rejected in error. The local election officials shall identify for the candidates’ review those previously rejected ballot envelopes that were not rejected on any of the four bases stated in Minn. Stat. § 203B.12 (2006), or in Minn. Stat. § 203B.24 (2006) for overseas ballots. Any absentee ballot envelopes so identified that the local election officials and the candidates agree were rejected in error shall be opened, the ballot shall be counted, and its vote for United States Senator added to the total votes cast for that office in that precinct. A candidate shall be permitted to challenge the declaration of which candidate for United States Senate such a ballot is to be counted for, using the challenge standards utilized during the pending recount process….
http://www.mncourts.gov/Docume…
Based on the bolded text, it seems to me that the court expects the campaigns merely to act as checks to ensure that election officials did in fact reject the absentee ballots at issue improperly under the cited laws. This is further suggested by the fact that the court charges the campaigns and election officials to “establish and implement a process” for identifying improperly rejected absentee ballots (i.e., not a method). In other words, the ballots “rejected in error” are those that met all of the applicable legal requirements but were thrown out anyway; if either candidate wanted to exclude these ballots from the count, they would have to argue that they failed at least one of the statutory requirements.
And what are those requirements? § 203B.12 states:
The election judges shall mark the return envelope “Accepted” and initial or sign the return envelope below the word “Accepted” if the election judges or a majority of them are satisfied that:
(1) the voter’s name and address on the return envelope are the same as the information provided on the absentee ballot application;
(2) the voter’s signature on the return envelope is the genuine signature of the individual who made the application for ballots and the certificate has been completed as prescribed in the directions for casting an absentee ballot, except that if a person other than the voter applied for the absentee ballot under applicable Minnesota Rules, the signature is not required to match;
(3) the voter is registered and eligible to vote in the precinct or has included a properly completed voter registration application in the return envelope; and
(4) the voter has not already voted at that election, either in person or by absentee ballot.
https://www.revisor.leg.state….
Hm, not a lot of discretion there. How about § 203B.24?
Subdivision 1. Check of voter eligibility; proper execution of certificate.
Upon receipt of an absentee ballot returned as provided in sections 203B.16 to 203B.27, the election judges shall compare the voter’s name with the names recorded under section 203B.19 in the statewide registration system to insure that the ballot is from a voter eligible to cast an absentee ballot under sections 203B.16 to 203B.27. The election judges shall mark the return envelope “Accepted” and initial or sign the return envelope below the word “Accepted” if the election judges are satisfied that:
(1) the voter’s name on the return envelope appears in substantially the same form as on the application records provided to the election judges by the county auditor;
(2) the voter has signed the federal oath prescribed pursuant to section 705(b)(2) of the Help America Vote Act, Public Law 107-252;
(3) the voter has set forth the same voter’s passport number, or Minnesota driver’s license or state identification card number, or the last four digits of the voter’s Social Security number as submitted on the application, if the voter has one of these documents; and
(4) the voter has not already voted at that election, either in person or by absentee ballot.
If the identification number described in clause (3) does not match the number as submitted on the application, the election judges must make a reasonable effort to satisfy themselves through other information provided by the applicant, or by an individual authorized to apply on behalf of the voter, that the ballots were returned by the same person to whom the ballots were transmitted.
An absentee ballot cast pursuant to sections 203B.16 to 203B.27 may only be rejected for the lack of one of clauses (1) to (4). In particular, failure to place the ballot within the security envelope before placing it in the outer white envelope is not a reason to reject an absentee ballot.
https://www.revisor.leg.state….
Again, it seems pretty straightforward as to what envelopes are and are not valid under this statute.
Now, I suppose that either camp could simply refuse to agree to count any ballots. However, I don’t know how far that would get the candidate. The opinion makes clear that there remain additional proceedings available to consider the legitimacy of these ballots. Additionally, failure to agree in good faith may subject either party to sanctions (possibly including fines and public embarrassment of their attorneys) in subsequent proceedings. It seems to me that a candidate who challenged the judgment not only of the other candidate but also of the election officials would face an uphill battle both to avoid sanctions and to establish that a ballot should be thrown out. Therefore, my guess is that most or all of the absentee ballots that election officials believe were rejected improperly will eventually be counted.
I started shoveling as soon as it stopped snowing. Apparently, some of the other people on the street were waiting for the same moment. Shovelfuls of snow were flying up and down the street. The next-door neighbor and I exchanged waves and then buckled down to work. 
