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Associated Press, Published August 11 2010

Appeals court rules against KSTP-TV in ballot case

MINNEAPOLIS – Rejected absentee ballots count as private information under the state’s Data Practices Act, the Minnesota Court of Appeals ruled Tuesday, rejecting a TV station’s effort to gain access to ballots that were never counted in the state’s 2008 U.S. Senate race.

The appeals court on Tuesday reversed a ruling by a Ramsey County judge in a lawsuit brought by KSTP-TV, which was seeking access to thousands of absentee ballots that were rejected and went uncounted in the hotly disputed race. After a protracted recount and court trial, Democrat Al Franken edged Republican incumbent Norm Coleman by 312 votes out of 3 million cast.

The appeals court said the Minnesota Government Data Practices Act unambiguously states that sealed absentee ballots are classified as private data until opened by an election judge, so rejected absentee ballots that have never been opened also count as nonpublic data.

Mark Anfinson, an attorney for KSTP-TV, said the station will appeal to the Minnesota Supreme Court and will likely ask the high court for a temporary order to ensure that the unopened ballots are preserved in the meantime.

Anfinson said they disagree with the Court of Appeals’ conclusion that the language on absentee ballots in the Data Practices Act is clear. He said they believe it isn’t and that it should be construed to mean the ballots are public as long as the voters can’t be identified.