The missing Shakopee ballots: What happened, what should have happened and what should happen now?

Twenty absentee ballots from precinct 10 in Shakopee, Scott County, Minnesota, have been making news following the Nov. 5 election. Most of the attention has been focused on the fact that each of those 20 might contain a vote in the race for House District 54A, which was decided in favor of state Rep. Brad Tabke, DFL-Shakopee, by just 14 votes. Moreover, a change in the outcome could determine control of the Minnesota House, which is currently deadlocked between Republicans and Democrats, 67-67.

The underlying problem affects entire ballots, however, so we should step back from all the heat of a closely decided race to try to shed some light on what went wrong, what ought to have prevented the problem, and appropriate steps forward.

What happened?

While many Minnesota counties process all absentee ballots at the county level, Scott County designates cities to process a portion of the absentee ballots, particularly ballots cast in person. Like many of these designated municipalities, the city of Shakopee administers its own absentee ballot board to perform key steps in this processing. Scott County Attorney Ron Hocevar released a preliminary investigation summary that explains that Shakopee’s absentee ballot board returned 20 fewer ballots from precinct 10 than the number of absentee voters it had checked in, and that the tabulated results likewise reflected this shortage of 20 ballots.

We don’t know exactly what happened to produce that shortage. Presumably if a video of the absentee ballot board’s work were available and showed the moment at which the process went wrong, Hocevar would have mentioned it.

However, he provides good reason to think that on Oct. 18, when the board was processing envelopes accepted prior to that date, the processing of the 20 precinct 10 envelopes accepted on the 17th went awry. 

Absentee ballots cast in person divide into those cast using “direct balloting,” which the voters insert directly into a tabulator, and those cast using the same sort of envelopes as when voting by mail. By law, the ballots accepted on the 17th were of the envelope-enclosed kind.

Thus, a reminder of the process used for absentee ballots cast in envelopes: The ballot is in a “secrecy” envelope, which is nested inside the “signature envelope.” The ballot board accepts or rejects the signature envelope based on the information on the outside. Working with the accepted signature envelopes from one precinct at a time, the ballot board members take the secrecy envelopes out of the signature envelopes and set them aside to preserve the secrecy of the voters’ ballots. They then remove the ballots from the secrecy envelopes.

In Shakopee, rather than being treated as envelopes that needed ballot extraction, the 20 secrecy envelopes were instead treated as the empty envelopes remaining after extraction — and were as such discarded.

What should have happened?

The question of what ought to have happened may seem foolish. The ballot board members ought to have removed the ballots from the secrecy envelopes.

But as important as it is to minimize error, it is at least as important to catch those errors that do occur at a time when they can still be rectified. It is in this regard that the question of what should have happened becomes more interesting. What should the city of Shakopee have done to catch its own mistake and fix it before it affected results? There ought to have been multiple opportunities.

The work of absentee ballot boards is controlled by statute. But whereas the Legislature provided significant detail about the decision to accept or reject a ballot, the language regulating the ballot extraction is much more brief. Therefore, counties and municipalities need to establish their own procedures, which ought to incorporate the best practices gleaned from statewide experience. Some of those best practices are included in a guidance document from the Office of Secretary of State, but many are not.

The first practice that would have caught Shakopee’s mistake is for pairs of ballot board members to count before and after processing each batch of envelopes. That is, two members of the board count the number of sealed, accepted signature envelopes that they are about to work on, and having agreed upon the number, write it down. Then, after removing secrecy envelopes from signature envelopes and ballots from secrecy envelopes, they both count the ballots.

In this way, the count of ballots can be reconciled with the number of signature envelopes on a per-batch basis immediately at the processing table. (The ballot board members would alert their supervisor to any empty envelope or envelope with two ballots,) Hocevar’s summary gives no indication that Shakopee followed this process.

The second opportunity for Shakopee to catch its mistake was when inserting the ballots into the optical-scan tabulator. The tabulator displays how many ballots it has scanned. By consulting this number as each batch is inserted, one can verify that the batch contains the expected number of ballots. While catching a mistake at this point doesn’t lead to as easy a fix as immediate detection at the ballot-extraction table, going back to the relevant secrecy envelopes would still be straightforward.

Unfortunately, this batch-by-batch check on the tabulator is not so easy in smaller municipalities that use the same tabulator for direct balloting as in larger cities and counties that have dedicated machines for envelope-enclosed ballots. Perhaps for this reason, the investigation summary gives no indication Shakopee took this precaution.

Even if Shakopee didn’t check the tabulator’s count on a per-batch basis, the preliminary investigation summary indicates that they did record it on a daily basis. Indeed, this is how the investigators were able to determine that too few ballots were scanned specifically on Oct. 18. The documented increase in the tabulator’s count over the course of that day did not match the number of direct-balloting voters plus the number of signature envelopes opened.

This check of the day’s ballots, performed later by the county investigators, ought to have been performed on Oct. 18 (and each subsequent day) by the city of Shakopee. The red flag was there. Had attention been paid to it, the problem could still have been fixed, even if it required digging through a day’s worth of supposedly empty secrecy envelopes that actually contained 20 ballots.

Finally, the city of Shakopee ought to have done one last aggregate check before turning their materials over to Scott County. Or rather, given that the county finished up the city’s scanning, this check would have followed that completion. 

Specifically, the city ought to have done the exact check that was the county staff’s first sign of trouble, comparing the total number of ballots they were returning for the precinct (309) with the number of absentee voters they had processed (329). This wouldn’t have identified a particular batch or day. A discrepancy detected at this point could have been from any date from Oct. 18 through Nov. 5. Resolving it would have required a lot of high-stress work on election night. But city staff could still have recovered the 20 ballots from their secrecy envelopes, and the outside world would have seen nothing but a delay in reporting.

Of course, resolving the problem that late would not only be stressful, it would require that the supposedly empty secrecy envelopes from the entire 18-day period still be on hand. And that leads to the final precaution that the city of Shakopee ought to have taken, which is to preserve these envelopes until the entire canvassing process is complete.

Unlike signature envelopes, secrecy envelopes contain no information particular to a voter and so are not election records. The 22-month record retention law does not apply to the secrecy envelopes. But as this year’s unfortunate incident illustrates, they can be invaluable when procedural errors are still being detected, investigated and resolved.

What should happen now?

Because one race voted on in Shakopee’s precinct 10 was narrowly decided, the most immediate response is that the losing candidate in that race will be contesting it in court. And this also provides the most immediate context for the county’s continuing investigation, which will surely feature in an affidavit to that court. But it would be a mistake to think the contested House race is the only occasion for action. 

We also need to think about all future elections, statewide.

Every eligible citizen who chooses to vote should have their votes counted. The 20 voters in question should have had their vote for U.S. senator counted, even though the margin was so lopsided that AP “called” the race while votes were still being counted. And indeed, where administrative error didn’t intervene, votes in that race, and all other races, continued being counted even once the ballots remaining were mathematically incapable of flipping the result. Election professionals have a responsibility to treat every vote as sacred, whether determinative or not.

With regard to the 54A race, these 20 voters should have had their votes counted, even if those votes would have widened the winner’s margin, rather than shrinking it to the point of reversing. Given the political skew of the precinct in question, that’s a highly plausible scenario.

Partly for that reason, it’s unlikely that for these voters in this election, the gap will ever be closed between what should happen and what did happen. If the losing candidate’s lawyer could persuade a court that the outcome would change, the court would advise the House to seat that candidate. But as things stand, he has much longer odds.

If the contestant has no case that the court should identify a different winner, then his remaining alternative is to argue that the election was so irregular as to be voided entirely, allowing the seat to be filled by a special election. However, as the Minnesota Supreme Court remarked in the 1975 case of Hahn v. Graham, “It has been the rule in this state for well over 100 years that violation of a statute regulating the conduct of an election is not fatal to the election in the absence of proof that the irregularity affected the outcome or was the product of fraud or bad faith.”

And just as there is little prospect for showing the outcome was affected, the preliminary investigative report shows no signs of fraud or bad faith. The 20 ballots that were apparently discarded were not individually selected based on the votes that were on them. Rather, they were all those accepted by the city on the Oct. 17.

Regardless which candidate you wish would represent this district in the House, it’s a sad thought that the outcome may come down to whether the House chooses to heed the court’s advice or substitute its own more political judgment. Constitutionally, “Each house shall be the judge of the election returns … of its own members.” If the House divides 67 to 66 on whether to seat a member, the session will be off to a very bad start.

But let’s turn to the more cheerful thought of what can be done to prevent a repeat, not just in Shakopee but anywhere else in the state. The prior section on what should have happened is a road map for the processes that ought to be more consistently adopted. And the need for that consistency is now rendered highly apparent to the very body best positioned to achieve it: the Legislature.

If the House does not divide over its own membership but instead unites around a common goal of improving the state’s election laws, this could be a great opportunity. The all too brief statutory language guiding the opening of envelopes could fruitfully be amended to incorporate precautionary best practices such as those listed above.

A more detailed statute is not sufficient. Procedures are only put into practice through suitable training and supervision, whether those procedures are listed in statute, administrative rule, state guidance, or a local checklist. But the most critical safeguards are most likely to be standardized if the Legislature places them in statute. The troubled election of one of its own members could be the perfect spur to take that action.