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AFFIDAVIT

William P. Howell, being duly sworn, upon oath states and deposes as follows:

1.

My name isWilliam P. Howell. I am the political coordinator for the

DFL Party in the Fourth Congressional District. Most recently, my duties include reviewing and analyzing lists of voters whose absentee/mailed ballots for the November 4 general election were rejected by local election officials.

2.

On Monday, November 17, the Franken for Senate Committee and

Al Franken submitted four affidavits to the State Canvassing Board. The affidavits were from persons whose absentee ballots in the November 4 general election were erroneously rejected by local officials.

3.

Since that time, the DFL Party and the Franken Committee have

been contacted by numerous voters whose absentee/mailed ballots were erroneously rejected. The most common complaint has been that ballots were rejected for lack of registration when, in fact, the voter was registered or had submitted a voter registration application.

4.

At the time the four affidavits were provided to the State

Canvassing Board, we had only very limited access to data concerning rejected absentee ballots because many of the counties and cities had refused to release the names and addresses of the individuals involved, or the reasons for the rejections of their ballots. On November 19, 2008, the Hon. Dale Lindman, Judge of District Court, Second Judicial District, ordered Ramsey County to produce data containing the names and addresses of absentee voters whose ballots were rejected and the reason(s) for the rejections. A copy of the District Court's decision is attached hereto as Exhibit A. The complaints of erroneous rejection received are supported by lists of rejected absentee voters obtained from counties and cities pursuant to the Minnesota Government Data Practices Act.

5.

Primarily as a result of Judge Lindman's order, we have received

lists of rejected absentee/mailed ballots from all or parts of 66 counties, which jurisdictions represent approximately 53% of the approximately 2.886 million ballots cast in the 2008 U.S. Senate election. As of today, the lists include 6,432 persons whose absentee/mailed ballots were rejected.

6.

The lists of rejected absentee/mailed ballots contain numerous

indications of error by local officials such as precinct election judges. My review of these lists is ongoing and further analysis is required. However, the following are examples of what appear to be errors.

7.

The Minneapolis list references a number of ballots rejected at the

polls due to election judge or administrative error. These include: Mary L. AmyW. Brette H. Andrew N. Kelly P. Anatol L. Marjorie H. Derrin M. Janet K. Heidi V. Varya R. At polls - EJ error At polls - Admin error, didn't find name on roster At polls - EJ error, not found on roster At polls - EJ error, VRA with green rosters At polls - EJ error, VRA with green rosters At polls - EJ error, VRA with green rosters At polls - last name search incorrect At polls - last name search incorrect At polls - name typo, not found roster At polls - name typo, not found roster At polls - name typo, not found roster

Katherine C. At polls - EJ error

Theodore L. At polls - error, not found on roster

8.

The Minneapolis list includes more than 130 ballots rejected for

lack of registration where error is not acknowledged. In Hennepin County as a whole, including Minneapolis, we have found several instances in which the Secretary of State database confirmed the registration of voters whose absentee ballots were rejected for lack of registration. Further, the ballots of 3 Minneapolis voters - Krystle R., Donna G., and Peter G. -- were rejected at the polls, but the list shows that their voter registration applications are in the still-sealed ballot envelopes. (The list does not state how this was determined.) The submission of voter registration applications in the sealed ballot envelopes may explain some of the many Minneapolis ballots rejected for lack of registration.

9.
application.

The Minneapolis list shows that Elizabeth C.'s absentee ballot was

rejected because she listed her address as "homeless" on her voter registration

The Minneapolis list shows that 18 ballots were rejected because they were delivered to the wrong precinct. These ballots were submitted by the following voters: Marjorie R. George B. MichaelW. Bonnie H. Andrew M. Leah G. Adrienne H. Robert H. Jane H. Gail H.

10.

2

Jessica L. Vicki M. Patrick S. Daniel L. Robert Z. SeanW. Katarzyna K. Arthur P.

11.

The Minneapolis list shows that Jessica H.'s ballot was rejected

because it was "Delivered by elections too late."

12.

The St. Paul list shows that Kelly 0.'s ballot was rejected for this

reason: "Rejected it for lack of VR registration: EJ [Election Judge] error should have been accepted."

13.

The St. Paul list shows that Cheryl T.'s ballot was rejected because

it was delivered to the wrong precinct.

14.

The New Brighton list shows that Katherine S.'s ballot was rejected

because she was issued materials for the wrong precinct.

15.

The Roseville list shows that the ballots of the following voters were

rejected because they were issued materials for the wrong precinct: Elaine P., Matilda H. , Ray H., Donna K., Anthony N., Robert F. , Aaron G., Loraine G., Jennifer C. , and Dorothy F.

16.

The Duluth list shows that Allen H. 's ballot was rejected due to

"Clerical error" and that Kelly K.'s ballot was rejected due to "Judge error.''

17.

The Fillmore County list states that the absentee ballots of

Elizabeth F. and Alta R. were: "not counted because the ballots were found in the precinct box after the precinct had printed the ·r el etion ot , ."

18.

The Itasca County list states that Jo

;J:
·.

because: 'We messed up and somebody put in

� ,� � Pr·
A's ec

)was rejected
.�

'

this � day of November, 2008.

Subscribed and sworn to before me

FILED C<iurt Administrator

STATE OF MINNESOTA
COUNTY

NOV l 9 2008 !!y

DISTRICT COURT SECOND JUDICIAL DISTRICT CASE TYPE: CIVIL OTHER

OF RAMSEY

�-°'put¥

Al Franken for Senate,
Court File No. 62-CV-08-11578

Plaintiff, vs.
Rams e y County, Joseph

Mansky,

ORDER FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION

and John D oes and Jane Does,

Defendants.

This matter came before the Court on the Motion by Plaintiff for a Temporary Restraining Order and Temporary Injunction. Appearances of counsel are noted in the record. Based on all the files and proceedings herein, and the argument of counsel, and the Court being duly advised in the premises the Court makes the following:
,

FINDINGS OF FACT 1.

Plaintiff

Al

Franken for Senate Committee (the "Campaign" or "Plaintiff') is the

campaign organization through which Al Franken, candidate for United States Senate, conducted his candidacy for that office in the election held on November 4, 2008.
2.
Ramsey

Defendant Ramsey County

is

a

political

subdivision of

the State of Minnesota. Stat.

County administers elections pursuant to

Minnesota

Election Law, Minn.

Ch. 200-

211 c (2008). 3.

Defendant Joseph Mansky ("Mansky")

is

the Elections Manager

for

Ramsey County
the

and is the principal county officer charged with duties relating to elections. Mansky is

individual

responsible for the col1ection, use, and dissemination of any set of data related to the conduct of

..

elections in Ramsey

County pursuant to Minnesota Election Law, Minn . Stat. Ch. 200-21 IC (2008)

and the Minnesota Government Data Practices Act, Minn. Stat. Ch. 13 (2008) ("MGDPA").
4. Defendants John Do e and Jane Doe are unidentified Defendants who are designated

by law or by Ramsey County as an individual responsible for the colle ction , use, and dissemi nation
of any set of data related 5.

to the conduct of elections in Ramsey County.

On November 4, 2008, the State of Minnesota conduc ted an election for the office of

United States Senator.

6.

Int erim vote totals published by Secretary of State's Office show that the two leading

candidates in that election, Al Franken and Norm Coleman, are separated by 206 votes in an election
contest in which more th an 2.9 million votes were cast. Con sequent ly, the total vote margin between

these two candidates is less than one one-hundredths of one percent of the almost 2.9 mill ion votes
cast

for that office.
7.
If, as here, the total votes

separating the candidates are certified by the state

canvassing board to be less than one-half of one percent (0.5%) of the total of all votes cast for the
office of United States Senator, Minnesota Election Law directs the Secretary of State to oversee a mandatory manual recount

of all votes cast in the State for that office. Minn. Stat § 204C.35, subd.
.

l (b)(I).
8. 2008. 9. the The Secretary of State bas scheduled that

recount to commence on November 19,

On November 9, 2008, David Lillehaug ("Counsel"), in his capaci ty as counsel for
Ramsey County Assistant Attorney Darwin

Campaign, sent a letter to Mansky, care of

Lookingbill ("LookingbiH"), requesting inform ati on pursuant to the MGDPA.
I 0.
In the letter, Counsel reque st ed that

Mansky produce "the names and addresses of all

persons who submitted absentee ballots in but whose absentee ballots

connection with the general election of November 4, 2008,

were rejected or otheiwise not counted." Coun sel infonned Mansky that

the request was "urgent" and that the Camp a ign would pay reasonable costs for collecting and copying the information
11.
.

On November 11, 2008,

Counsel provided Ramsey County, through Mr. Lookingbill,

with a memorandum entitled "Absentee Ballot Data Practices Request," which further iterated and
explained

the Campaign's earlier request for information related to absentee ballots, and also sought

production of the reasons why the absentee ballots were rejected.
12.

The memorandum argues that pursuant to the MGDPA and Minn. Stat. § 203B.12,

subd. 7, the identity of absentee ballot voters may be made available for public inspection after the close of voting on election day.
13.
On

November 12, 2008, Ramsey County and Mensky denied the Campaign's

requests, citing Minn. Stat.§ 203B.l2, subd. 7 as purported justification.
14.

The Campaign has requested public information that has been collected and
so

maintained by the Defendants. The requested information has not been classified

as to deny the

Campaign access by any statutory section, temporary classification, or provision of federal law, including Minn. Stat. § 203B. 12, subd. 7.
15.

The Campaign has not been provided access to or copies of the requested

information.
16.

Plaintiff has satisfied all of the prerequisites for a temporary restraining order and

temporary injunction.
17.

The preexisting relationship between the parties is based on the Minnesota

Government Data Practices Act (MGDPA) and sections the Election Code. Under these provisions, the Plaintiff has a right to access the public data requested. The refusal of de fendant to provide the data impennissibly alters the relationship between the parties by infringing on clearly established rights under both election law and the MGDPA.

18.

The harm that Plaintiff would suffer absent a temporary re straining orde r and

temporary injunction far outweighs any hann to Defendant. With each passing hour, the Franken Campaign is irreparably harmed in its efforts to ensure that each valid vote is properly counted and to prepare for the procedures that will decide this election. By contrast, the County of Ramsey will suffer no harm from providing information that, even absent plaintiff's request, it must organize and maintain.

19.

Plaintiff is like ly to prevail on the merits. The MGDPA creates a presumption that,

unless otherwise provided by law, all government data are public. See Minn. Stat. § 13.03, subd. 1. The MGDPA deals specificalJy with certain aspects of absentee ballots by link to the election code.

See Minn. Stat. § 13.607, subd 7 ("Disclosure of names of voters submitting absentee ballots is
.

governed by secti on 203B. 12, subdivision 7."). Section 203B.12, subd. 7, in tum, states that: "The names of voters who have submitted an absentee ballot return envelope to the county auditor or municipal clerk may not be made available for public inspection until the close of voting on election day." This provision keeps the names of absentee voters private until the close of voting, at which time the general rule set forth in Minn. Stat. § 13.03, subd. 1 again applies, an� the data are no longer classified as anything other than public data.
20.

Public policy militates in favor of a temporary restraining order and temporary The MGDPA represents a fundamental commitment to making the operations of our

injunction.

public institutions open to the public, and courts must construe the MGDPA in favor of public access.
21.

The administrative burdens would be minimal. Plaintiff does not seek a remedy that

would require significant Court administration. Governmental entities routinely provide information of this nature, and this request imposes no significant burden.

CONCLUSIONS OF LAW
1.

That certain of the data requested by Plaintiff is pub1ic data, the production of which
by the MGDPA.

is required
2.

Defendants' refusal to produce public data requested by Plaintiff is in violation of

Minn. Stat. § 13.03, subd. 3(a), and has prevented P la i nt iff from receiving public data as required by Minnesota law 3.
.

Plain tiff has met all

of the requirements of, and is entitled to receive, a temporary

restraining order and temporary injunction as follows.

ORDER 1.

P1aintiff has the right to obtain or access al l public data, according to the provisions

of the MGDPA. The Court finds that the following is public data that must be produced for
inspection and

or copying:
1.

Names of voters who have submitted an absentee

ballot return envelope

.

Minn. Stat. 203B.12, Subd. 7.
ii. The envelopes of absentee ballots that have not been opened by an election

judge
iii.

.

Data already compiled in written form

or routinely compi led by election

officials, regarding the number of absentee votes, absentee voters, etc.
iv. Existing written information regarding th e reason for acc ep ting or rejecting an absentee ballot m ust be produced. However, there

has been no authority

cited to this court that would make the unwritten reasoning process of
e1ecti on officia]s public, government data. The MGDPA applies to written

data only.

Accordingly, Plaintiff is not entitled to orally

query election

..

officials regarding their reasoning. However, if that reasoning has been

reduced to written fonn it is public data and must be produced.

2.

Defendants, and all persons acting in concert with them, are hereby restrained and

enjoined from refusing to provide the public data Plaintiff has requested under the MGDPA. 3. Defendants must produce by the close of business on this date the requested public

data at a fee fairly representing D efendants ' reasonable production costs.

4.

This Order shall be immediately effective, the P lainti ff having filed with the Court a

bond in the sum of$ 2000 or tendering a check to the Clerk of the Court to hold in lieu of a bond in the

sum of$ 2000, for the payment of such costs and damages as may be incurred or suffered by such party who is found to have wrongfully enjoined or restrained. 5.

Service of this Order on Defendants may be made by delivery or facsimile transmission

to the Office of the Ramsey County Attorney and counsel for other defendants, and shall be deemed sufficient service for all purposes. SO ORDERED: BY THE COURT: Dated:

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