The Minnesota Supreme Court is still deliberating on Norm Coleman's latest appeal in the drawn out Senate Election of 2008; but at this point their ruling merely appears to be a legal formality. Even Minnesota's Republican Governor, Tim Pawlenty, has indicated his intent to adhere to the MNSC's ruling by signing the Election Certificate should Al Franken be declared the victor. With a ruling likely to come this week or next, Al Franken seems poised to become the legal victor, and there isn't anything anybody can do about it.

Michael Brodkorb of MinnesotaDemocratsExposed.com does however seem intent on altering the public's perception. On June 8th, just five days before his election as the new Deputy Chair of the Minnesota Republican Party, he filed public data practice requests with seven of Minnesota's counties seeking photocopies of rejected absentee ballots.

Mr. Brodkorb filed his two page request with the counties of Anoka, Carver, Dakota, Hennepin, Olmsted, Sherburne and Washington, and the cities of Edina, Minnetonka, Orono and Plymouth. The following excerpt contains the request sent to Anoka County:

Michael Brobkorb
[Poorly Redacted Address]

June 8, 2008

Rachel Smith
Anoka County
325 E Main St W130
Anoka, MN 55303-2465

Re: Data Practices Request

This correspondence is a request for access to public information and data relating to the 2008 general election for United States Senator in your county under the Minnesota Government Data Practices Act ("MGDPA"), Minnesota Statutes, Chapter 13. Minnesota Statutes § 15.17 requires all government entities to make and maintain all records relative to their official activities. Minnesota Statutes § 13.03, subdivision 1 requires all government entities to keep records that contain government data in a way (or ways) that makes the data easily accessible for convenient use.

The undersigned requests copies of that portion of the front side of all ballots relative to the 2008 United States Senate general election contained within rejected absentee ballot envelopes in your possession that were not submitted late and were not submitted by persons who otherwise voted in the 2008 general election (either in person or by replacement absentee ballot).

This request does not seek to have the undersigned open or unseal any absentee ballot envelopes; to the extent any such envelopes have not yet been opened, the undersigned requests that an election judge do so. This request also does not seek access to any data regarding any individuals, including voter registration applications, voter registration lists or any other information related thereto and subject to restricted access under Minnesota Statutes § 201.091. Finally, this request does not seek copies of the absentee ballot envelopes themselves or any accompanying materials, such as absentee ballot applications. In short, this request in no way seeks to ascertain which person(s) voted for which candidate(s). The request can be easily complied with while protecting the secrecy of the ballots.

This information/data is clearly public information under the MGDPA. As you know, Minn. Stat. § 13.03, subdivision 1 provides that all government data collected, created, received or maintained is public information unless classified by statute, federal law or temporary classification as confidential, private, nonpublic or protected nonpublic data. No such classification exists for the information requested. No Minnesota statute provides that the ballots contained within uncounted rejected absentee ballot envelopes is nonpublic or private information if opened by an election judge; although Minnesota law requires you to securely maintain all election materials, no Minnesota statute exists which denies the public the right to inspect and/or receive copies of the ballots contained within rejected absentee ballot envelopes.

As the agency with jurisdiction over all ballots and election materials within your county, it is your duty to comply with data practices requests under the MGDPA and the undersigned is not aware of any statutory or other authority which prohibits you from opening the rejected absentee ballot envelopes while maintaining the secrecy of each person's intended vote for the purposes of complying with this request.

There is simply no risk whatsoever that the secrecy of any ballot(s) will be compromised. Again, this request seeks only a photocopy of the section of ballots relative to the 2008 general election for United States Senator contained within certain rejected absentee ballot envelopes in your possession or under your control and in no way seeks to ascertain which person(s) voted for which candidate(s).

...

Thank you.

Sincerely,

Michael B. Brodkorb

[emphasis added]

Source: Data Practices Request to Anoka County via Minnesota Democrats Exposed [PDF]

There are several catastrophic assumptions and falsehoods located within Brodkorb's meager request. I've bolded the fallacious and contradictory portions from his request above and will now address each item below.

Let's begin by addressing the issue raised within the first bolded portion; the need for an election judge to open the requested ballots. This triggers two questions, the first of which I will now address. It is necessary for an election judge to open the currently sealed and rejected absentee ballots because of MN § 13.37:

13.37 GENERAL NONPUBLIC DATA.

Subd. 2. Classification.

The following government data is classified as nonpublic data with regard to data not on individuals, pursuant to section 13.02, subdivision 9, and as private data with regard to data on individuals, pursuant to section 13.02, subdivision 12: Security information; trade secret information; sealed absentee ballots prior to opening by an election judge; sealed bids, including the number of bids received, prior to the opening of the bids; parking space leasing data; and labor relations information, provided that specific labor relations information which relates to a specific labor organization is classified as protected nonpublic data pursuant to section 13.02, subdivision 13.

[emphasis added]

Source: 13.37, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes

13.02 COLLECTION, SECURITY, AND DISSEMINATION OF RECORDS; DEFINITIONS.

Subd. 9. Nonpublic data.

"Nonpublic data" means data not on individuals that is made by statute or federal law applicable to the data: (a) not accessible to the public; and (b) accessible to the subject, if any, of the data.

...

Subd. 12. Private data on individuals.

"Private data on individuals" means data which is made by statute or federal law applicable to the data: (a) not public; and (b) accessible to the individual subject of that data.

Source: 13.02, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes

Minnesota § 13.37 essentially states that unopened absentee ballots are private data and are therefore inaccessible to the general public. The subject of this request, rejected absentee ballots, are currently unopened and therefore qualify for protection under § 13.37.

Brodkorb may think he is circumventing § 13.37 by explicitly asking the election judges to open his requested ballots, but data practice requests do not fall within the duties of elections judges with regard to opening absentee ballots. In fact the only mechanism by which absentee ballots can be opened by an election judge falls within the jurisdiction of § 203B.12:

203B.12 ELECTION JUDGES TO RECEIVE AND COUNT BALLOTS.

Subd. 4. Placement in container; opening and counting of ballots.

The ballot envelopes from return envelopes marked "Accepted" shall be placed by the election judges in a separate absentee ballot container. The container and each ballot envelope may be opened only after the last regular mail delivery by the United States postal service on election day. The ballots shall then be initialed by the election judges in the same manner as ballots delivered by them to voters in person and shall be deposited in the appropriate ballot box.

[emphasis added]

Source: 203B.12, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes

The rejected absentee ballots requested by Brodkorb are not marked with "Accepted" by definition because they were "Rejected" under § 203B.12 subd 2. As a result of their current "Rejected" status, the absentee ballots in question would never qualify for the "separate absentee ballot container" and could therefore never be opened by an election judge.

At this point, the first half of Brodkorb's argument is clear; he wants election officials to open his requested rejected ballots. Brodkorb then justifies this request by stating, in the second bolded portion, that the ballots then become public data if they are opened by election officials. It doesn't make a whole lot of sense; he is attempting to justify one action with another. The rejected ballots are private data, so to make them public, an election judge needs to open them; but an election judge cannot open them because they are rejected. Brodkorb's entire argument is circular and without merit.

After seventeen days, Brodkorb posted a follow-up to his data practice requests:

I have received responses to all of my requests for public data and every county and city has denied my request. I'm reviewing my options and I'll have updates on this subject in the next 24 hours on Minnesota Democrats Exposed.

Source: Update: MDE Exclusive: Data Practices Request Filed Today Requesting Copies of Certain Rejected Absentee Ballots via Minnesota Democrats Exposed

Brodkorb's request appears to have been flatly denied by each jurisdiction. He does however have at least one other option. Brodkorb could bring forth an action to compel discovery of these rejected ballots in accordance with MN § 13.03 subd. 6. I don't know how this would work, or if rejected absentee ballots even qualify for discoverability.

It will be interesting to see if Brodkorb continues to pursue these data practice requests when he becomes the new Deputy Chair of the Minnesota Republican Party this Wednesday.