As thousands of Minnesotans mourn the passing of DFL Sen. Paul Wellstone, legal challenges have already been filed over how to process absentee ballots bearing his name. DFL officials said Tuesday that guidelines laid out by Secretary of State Mary Kiffmeyer and Attorney General Mike Hatch could disenfranchise thousands of voters -- and they're asking the state Supreme Court to intervene. Hours later, state Republicans sought permission to weigh in on the legal battle.

	Secretary of State Mary Kiffmeyer and Attorney General Mike Hatch are in charge of laying out the guidelines for ballot changes, in the wake of Sen. Paul Wellstone's death. (MPR Photo/Michael Khoo)

The DFL petition challenges the interpretation of state law made by both Kiffmeyer, a Republican, and Hatch, a DFLer, that elections officials should continue issuing absentee ballots bearing Wellstone's name until a replacement is named.

Kiffmeyer and Hatch have also said that voters who have already returned votes for Wellstone by mail are not eligible to recast their votes unless they appear -- in person -- at their county auditor's office or their polling center. If they're out of the state and unable to return, their votes for Wellstone won't count. DFL attorney Alan Weinblatt says that's unacceptable.

"Folks like that are being told, 'You're out of luck.' That's not what we do in Minnesota," says Weinblatt. "It is true that only one set of ballots may be mailed or delivered to an absentee applicant for any election -- except when a replacement ballot is requested by the voter, for a ballot that has been spoiled or lost in transit."

Weinblatt reasons that Wellstone's death has rendered any votes cast for him "spoiled," and therefore eligible for a replacement ballot sent by mail. Kiffmeyer declined to comment on the court filing, referring questions to Hatch. Hatch, however, said he couldn't provide a substantive response until he's studied the court papers.

"He does raise a point with regard to spoiled ballots. We're looking at other statutes as we get into this," Hatch says. "A person who's voted -- how do they get a ballot, can they get one mailed to them? We don't think so. He may have an argument that I haven't seen that may persuade the court to do otherwise. So we'll see what happens."

Shortly afterwards, Republicans asked the court for permission to intervene in the matter. GOP attorney Tony Trimble says he's still studying the question of so-called spoiled ballots -- but he says it's already clear the Democrats have erred on one point. Trimble argues that if the DFL request to temporarily halt the issuance of ballots is granted, it could disenfranchise voters who are leaving town shortly and need an absentee ballot promptly.

"There's an attempt to tell the county auditors that if they have 30 or 40 or 50 requests for an absentee ballot, that they should stop processing those and wait until a later date to send those ballots out. And by doing so, any number of people -- any number of people -- will likely not be entitled to vote," Trimble says.

The court has scheduled a hearing in the matter for Thursday morning. But by the time the court rules, the issues may be moot, since former Vice President Walter Mondale is reportedly ready to assume the DFL mantle -- and supplemental ballots will then be available.

The issue of mailing replacement ballots for possibly "spoiled" Wellstone votes could also be marginalized, since there may not be enough time -- at that point -- for replacements to be sent out, filled in, and returned by next Tuesday's election.

The sudden flurry of legal action comes as no surprise to Gov. Jesse Ventura. Spokesman John Wodele says the governor has been anticipating litigation that could delay final election results. Wodele says the governor is therefore ready to appoint a temporary replacement.

"One of the considerations we've had is the possibility that this certification of this election process could be held up as a result of contests or petitions to the Supreme Court -- other legal maneuverings. And before the contest has even taken place, it's coming true," he says.

Wodele says even without the legal challenges, the governor is likely to name an fill-in senator. He notes that the Senate is scheduled to resume budget discussions just one week after the election, which is before the state canvassing board can officially certify the winner of the Senate election. Wodele says the governor wants Minnesota fully represented, even during that two-week window.