Twenty ballots went missing in a Minnesota precinct this November, the type of error that would typically result in an internal investigation but not receive much public attention. But the implications are much greater right now, as the race for the district’s state house seat is separated by 14 votes, and that seat will determine whether Republicans win control of the chamber.
The missing ballots, which were probably the result of human error, were never counted. Officials tried to track them down, only to learn that they had been sent to the shredder.
As it stands, Democratic representative Brad Tabke won the race over Republican Aaron Paul in Minnesota’s district 54A, which covers an outer suburban area of Minneapolis.
The Minnesota house is currently tied 67-67, meaning the parties will need to negotiate how to share power. If Tabke’s win were overturned, Republicans would gain control. Democrats now hold both chambers of the legislature and the governor’s office and have used their trifecta to pass a spate of progressive policies, the promotion of which helped land Tim Walz a spot on the presidential ticket this year.
“This is a unusual situation,” said Larry Jacobs, director of the Center for the Study of Politics and Governance at the University of Minnesota.
Paul and Minnesota Republicans want to redo the election and filed a notice to contest in Scott county court. Republicans said the error and violations of election law were “of significant magnitude that it may determine the election outcome, resulting in the announced winner of the race being the candidate who the voters did not select”.
“Scott county election officials unlawfully lost and failed to count significantly more ballots than would be needed to change the announced result of the election, meaning at the very least the actual victor is in absolute doubt and at worst the candidate who received fewer votes has been announced as the winner,” attorney R Reid LeBeau II wrote in the legal filing.
LeBeau said in the filing that Tabke should not be issued a certificate of election, the election should be declared “invalid” and the seat vacant, and the House should refuse to seat Tabke. The vacancy once Tabke’s existing term ends would kick off a special election.
The question of who got the most votes in the House contest is “unresolvable based on the ballots in possession of Scott county”, LeBeau wrote.
Representative Lisa Demuth, the Republican minority leader in the house, said on X: “Ballots are missing. Election laws were violated. A new election is the only way to resolve the problems in district 54A.”
Melissa Hortman, the Democratic speaker of the house, said in a statement: “Rep Brad Tabke won the election in district 54A by the count on election night and in the recount. We expect Rep Tabke will prevail again in the election contest.”
The house itself could vote on whether to rerun the election or not to seat Tabke – state law for a contested election first involves the courts, but the house can then decide to hold a hearing and vote on how to handle the contest. The state constitution says each chamber “shall be the judge of the election returns and eligibility of its own members”.
Instances of human error in elections happen with some frequency, though they typically are not of large enough consequence to sway election results – or to be of such outsized importance as they are in this instance, with legislative power in the balance.
Jason Marisam, a law professor at Minnesota’s Mitchell Hamline School of Law, said the legal claim is an uphill battle for Paul. There is no evidence of intentionally removing ballots, and Paul would need to win the majority of the missing ballots to take the lead. The precinct in question voted strongly for Tabke – he won 58% of the vote in the Democratic-leaning area.
A new election would be “a drastic step”, Marisam said. “And it’s not necessarily the fairest either, because you’re going to get a different pool of voters. There’s no way to ensure that the same people who showed up to vote in November are going to show up to vote in the special election. There’ll be fewer people, because it’ll be a standalone special election.
“When you have no evidence of any wrongdoing from the candidate, no intentional wrongdoing from the election administrators, and statistically such a low probability that those ballots would change the outcome, it doesn’t seem to be sensible remedy here.”
Jacobs, the University of Minnesota professor, said a new election would be “very dramatic, highly unusual step” to resolve the issue, and he does not expect the courts to call for it. But Republicans would be justified in seeking remedies in the courts for a legitimate election problem.
“I think it’s important that the avenues for appeal and review be exhausted,” Jacobs said. “This is not the usual denialism. This is a fair, necessary scrutiny, and there needs to be accountability for what happened. Those 20 ballots should not have been destroyed. It can’t happen again.”
If Republicans were to get the seat moved to their column, they would gain control of the house and be able to advance their policies and budget plans rather than share control with the Democrats. Either way, though, the state government will be divided.
How did the ballots get lost
The race was recounted earlier in November, though the missing ballots were not publicly known. Scott county attorney Ron Hocevar’s investigation results were released on 27 November. Hocevar said the problem was likely the result of a human error and that the “unfortunate situation resulted in a level of confusion that should not have occurred”.
Elections officials noticed discrepancies between the number of voters signed in and the number of ballots counted in two precincts in the city of Shakopee. In one of those precincts, the city reported 329 voters but results for 309 ballots, with 20 ballots missing. It would be rare for 20 voters in a small precinct to decide not to vote after checking in.
The city had been slow to tabulate results on election night, Hocevar noted, so the county stepped in to help tabulate. City staff said that the total number of scanned ballots matched the amount of reported ballots – a claim that was “later found to be incorrect”.
The missing absentee ballots were narrowed down to those cast in the final few days of early “envelope voting”, when early voters submit ballots that go in a secrecy envelope and then in an envelope with the voter’s signature on it. Absentee ballot boards look at signatures for validity and accept or reject them.
On 17 October, election workers could start opening signature envelopes and then setting them to the side while placing secrecy envelopes in another pile for privacy reasons, the investigation noted, to prepare ballots for tabulation. The county has been “unable to verify” whether the missing ballots were ever removed from the secrecy envelopes.
The secrecy envelopes, which officials are supposed to keep, had been thrown in the trash. The county tracked the trash and recycling to two landfills, but found the recycling bale had been sent for shredding.
“Scott county has come to the conclusion that the ballots were likely disposed of while they were in their secrecy envelopes, after being removed from their signature envelopes but before being tabulated,” Hocevar wrote.
The letter notes the investigation is ongoing. Hocevar told the Guardian he has “no position on how this should be resolved. The county is neutral on that and the campaigns and the court system have to now figure it out.”
