Some cynical voters say District 27 has turned into &uot;Little Florida&uot; after a series of twists that ended &045; for now &045; with the State Canvassing Board certifying Austin DFLer Dan Sparks as the winner. Though the issues exhibited here and in Florida in 2000 are not exactly identical, they raised the same question: What is fair in vote counting?

The board’s judgment on 17 missing ballots in Austin’s Ward 2, Precinct 1 would be the centerpiece of dispute in the appeal process; defeated Sen. Grace Schwab, R-Albert Lea, is leaning toward challenging the ruling in the next week.

The solution the board took Tuesday was to respect the recount result for Schwab, who gained 13 votes from the official returns in the precinct, while adopting the original count for Sparks, assuming the eight votes he lost in the recount were among the missing ballots. That made the final precinct tally for Schwab 647 and Sparks 641.

The board based the decision on a recommendation by the Minnesota Attorney General’s Office.

&uot;Case laws say ballots are the best evidence of voters’ intent,&uot; Chief Deputy Attorney Kris Eiden said. &uot;The case laws also indicate, though, where ballots can’t be found, it’s appropriate to go back to the official return.&uot;

The office thought it was appropriate, however, to use the higher, recounted total for Schwab, rather than the election-night returns. &uot;We thought that would be a somewhat harsh result in this case, because Schwab’s ballots that were recounted showed higher number for her,&uot; Eiden said.

If the canvassing board had disregarded the recount result in the Austin precinct, Schwab would have lost 13 votes she gained in the recount and three contested ballots awarded in that precinct, shrinking her vote total from 15,085 to 15,069.

&uot;I think what they did was they tried to get as near to perfect as they could do,&uot; Sparks’ attorney, Brian Rice said. &uot;The circumstance was unusual. And, there was no perfect solution here when those 17 ballots are up a chimney. … I think they reached a fair and equitable result. Whether or not it was the result consistent with the law, we’ll see, knowing that equity is one thing and the law is another.&uot;

Canvassing Board member Judge Salvador Rosas of the Second District voted against the determination, expressing his concern that the decision may jeopardize the integrity of recounts.

But case law suggests that recounts should not always be used to determine an election result if the ballots have not been securely stored and their integrity is in doubt.

In a 1880 Minnesota Supreme Court case, in which Dakota County Sheriff candidate Frank Newell challenged the election result, the court ordered the county not to accept the recount tallies in three precincts where discrepancies in the election returns were found, and adopt the original counts.

Similarly, in a 1990 Illinois Supreme Court case over a state representative primary election that ended up a tie vote after a recount, the court cited a previous case, saying, &uot;If the evidence disclosed that the ballots were exposed to the reach of unauthorized persons, and the returns are not likewise discredited, the ballots will not be regarded as better evidence of the result of the election.&uot;

Schwab’s attorney, Fritz Knaak, criticized the Canvassing Board, calling the decision &uot;cutting the baby down the middle.&uot; He also accused the Attorney General’s Office, led by DFLer Mike Hutch, of being partisan.

Knaak contends all the case laws the Canvassing Board cited were determined by courts, and the board has no authority to make any decision about the missing ballots. He was expecting the board would not certify the results, and let the parties fight it out in court.

&uot;What they are supposed to do was a hard count, and leave for the court, and ultimately the State Senate, the decision of what to do about the missing ballots,&uot; Knaak said. And, he believes a different court determination on the Austin precinct, combined with possible revisions in the contested-ballot allocation, would provide a good chance to overturn the election result.

Eiden rebuffed that, saying, &uot;It seems appropriate the Canvassing Board apply the same standard the court would have applied.&uot;

Schwab has a week to file an appeal to any of three district courts where the polling took place. The appeal process may involve another recount under the supervision of a judge. It is uncertain, according to Knaak, if the court will reach a judgment before Jan. 7, 2003, when the legislative session opens.