STATE OF MINNESOTA

IN SUPREME COURT

C7-02-1879

 

Mike Erlandson, et al.,

 

                                                Petitioners,

 

vs.

 

Mary Kiffmeyer, Minnesota Secretary

of State, and Patrick H. O’Connor,

Hennepin County Auditor/Treasurer,

individually and on behalf of all County

and Local Election Officers,

 

                                                Respondents. 

 

 

O R D E R

PER CURIAM.

            The above-entitled matter came on for hearing before the court sitting en banc on Thursday, October 31, 2002 on the petition of Mike Erlandson, John Eisberg and Mollie Lorberbaum for relief pursuant to Minn. Stat. § 204B.44(d) (2000), alleging that the respondents Mary Kiffmeyer, Secretary of State, Patrick H. O’Connor, Hennepin County Auditor/Treasurer, and other county election officials have erred in failing to properly administer the instructions, the absentee ballots and the supplemental ballots for the general election scheduled for November 5, 2002. 

            Senator Paul Wellstone was the nominee for the United States Senate on behalf of the Democratic‑Farmer-Labor Party for the general election.  On October 25, 2002, Senator Wellstone died, creating a vacancy on the ballot under Minn. Stat. § 204B.41 (2000).  On October 31, 2002, the Democratic-Farmer-Labor Party filed a nomination certificate naming Walter Mondale as the party’s nominee.  On October 31, 2002, county election officials began preparing official supplemental ballots with Mr. Mondale’s name in substitution for Senator Wellstone. 

            Based upon all the files, records, and proceedings herein,

            IT IS HEREBY ORDERED THAT:

            1.            An official supplemental ballot must be prepared in accordance with Minn. Stat. § 204B.41 as a result of Senator Wellstone’s death.

            2.            If a voter has already cast a regular absentee ballot and requests, in any manner, an official supplemental ballot, the county election official shall provide the official supplemental ballot and a second regular absentee ballot, as a set, by mail using methods authorized for mailing of absentee ballots in Minn. Stat. ch. 204B, or in person if requested in person, to be utilized by the voter.  Instructions shall accompany the ballot set clearly stating that if the voter wishes to vote in the races on the regular ballot the second regular absentee ballot must be completed and returned, and that the second regular absentee ballot will replace the first regular absentee ballot cast by the voter. 

            3.            If a voter casts two regular absentee ballots, the ballot with the later date on the return envelope shall be counted.

            4.            If a voter casts a regular absentee ballot but does not cast an official supplemental ballot, the ballot shall be counted in the same manner as if the vacancy had not occurred.

            5.            If a voter casts a second regular absentee ballot and an absentee official supplemental ballot, the second regular absentee ballot shall be counted for all races except the office of United States Senator.  The official supplemental ballot shall be counted for the office of United States Senator.

            6.            County election officials shall personally provide an official supplemental ballot and a second regular ballot to agents designated by persons in health facilities pursuant to Minn. Stat. § 203B.06, subd. 3(b) (2000).

            7.            County election officials must timely deliver official supplemental ballots and second regular ballots to health care facility residents who received a regular ballot pursuant to Minn. Stat. § 203B.11 (2000).

            8.            A person may write in the name of a candidate either on the regular absentee ballot or the official supplemental ballot.

            9.            Minnesota Statutes § 204B.45 (2000) provides that voters residing in municipal areas with fewer than 400 registered ballots may vote by mail.  Mail balloting is a procedure different than absentee balloting.  If a voter has already submitted a “mail ballot” and requests, in any manner, an official supplemental ballot, the local election official shall provide the official supplemental ballot and a second regular ballot, as a set, by mail using methods authorized for mailing of absentee ballots in Minn. Stat. ch. 204B or in person if requested in person, to be utilized by the voter.  Instructions shall accompany the ballot set clearly stating that if the voter wishes to vote in the races on the regular ballot the second regular ballot must be completed and returned, and that the second regular ballot will replace the first regular ballot cast by the voter.

            10.            So as not to impair the orderly election process, this order is issued with opinion(s) to follow.  

            Dated:  October 31, 2002