The “Fifth Pile”: What’s It All About?

Readers who have followed our many posts on the Minnesota Senate recount, including Scott’s just a little while ago, may recall that Secretary of State Mark Ritchie asked all of Minnesota’s 80-plus counties to sort their rejected absentee ballots–those that were disqualified on November 4 and therefore not counted–into five piles. The first four piles were to correspond with the four statutory grounds on which, under Minnesota law, absentee ballots are to be disqualified. The fifth pile includes all ballots that don’t clearly fall in any of the first four piles. These are conventionally referred to as the “wrongly rejected” absentee ballots.

Some counties followed Ritchie’s suggestion, others ignored it. The request was, in a sense, odd on its face: counties were being asked to review the absentee ballots they rejected on November 4 and decide whether they want to change their minds, but without any guidance as to what might cause them to do so.

On Friday, Minnesota’s Canvassing Board surprised nearly everyone by seemingly buying into Ritchie’s procedure–Ritchie is the Chairman of the Board–and recommending to the counties that they sort their rejected absentee ballots into the five piles first suggested by Ritchie.

So what is wrong with that? The problem is that every county is free to make its own decision as to what ballots should go into the fifth pile, or, for that matter, whether to engage in the exercise at all. The kind of issue that can arise was best explained by a caller to our radio show on Saturday. She is a Coleman volunteer who participated in the process when it was carried out, in response to Ritchie’s request, in St. Louis Park, Al Franken’s home town and part of Hennepin County.

One of the statutory requirements is that an absentee ballot must be signed. Thus, on election day, any unsigned absentee ballots were rejected. But her jurisdiction–I’m not sure whether it was Hennepin County or a smaller unit, but I assume the county–decided that if the unsigned ballot had been signed by an election judge, then the fact that it was unsigned wasn’t really the voter’s fault, since the election judge should have caught the error and told the voter to sign the ballot. Thus, ballots that fell into that category were put into the “fifth pile.”

Was this decision right or wrong? Wrong, one would think, because the law says that in order to count, absentee ballots must be signed by the voter.

Beyond that, the fundamental point is that there is no standard to guide the counties as they create (or don’t create) “fifth piles.” Some counties will say that unsigned ballots should be counted–contrary to the statute–as long as they were signed by an election judge. Others won’t. Numerous other, similar issues will arise. It doesn’t take much imagination to figure out that the most partisan counties will take the most liberal approach and put as many ballots as possible into the fifth pile. Those counties are, without exception, controlled by the Democratic Party: Hennepin, Ramsey and St. Louis. They are also the state’s biggest counties.

Thus, giving the counties discretion to count whatever additional ballots they deem appropriate amounts to giving the Democratic Party a license to steal the election. Which is why the Coleman campaign wants the Supreme Court to at least issue a standard set of guidelines so that all counties, Republican and Democrat, are playing by the same rules.

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