The state Canvassing Board confirmed Democrat Dan Sparks' seat in the State Senate when it certified results Tuesday in the District 27 recount.

Sparks beat Republican incumbent Grace Schwab by 11 votes after the board ruled on 32 contested ballots, along with 17 destroyed ballots in an Austin precinct. Before those ballots were counted, Sparks led by only three votes after the recount.

But Schwab and her attorney have seven days to decide whether they will appeal the decision. Based on some of the decisions the canvassing board made, a court appeal is possible, said Fritz Knaak, Schwab's attorney.

"The best thing Grace can do is sit down and collect her thoughts," Knaak said.

In the recount, the board decided 3-2 to count eight votes that Sparks had lost after the recount in the 1st Precinct of the 2nd Ward. In that precinct, 17 ballots were destroyed.

However, eight more votes for Sparks were recorded on the optical scan result tape than were recounted. Because the ballots were destroyed, there is no way to know who those voters picked. The other nine missing ballots were not given to either candidate.

Sparks' attorney, Brian Rice, contended the board should count the ballots in favor of Sparks. He said it's likely the majority of missing ballots were for Sparks.

Knaak said the board's move in that regard was without precedent.

Schwab said it was not fair to count some ballots but not others.

"I feel very sad and disappointed," she said. "If I would have lost fair and square I could have dealt with that. But to take votes off a tape and disregard the other missing ballots … how do I make that make sense?"

Seventeen ballots, thought to be absentee ballots containing votes for the late U.S. Sen. Paul Wellstone, were burned in an election judge's fireplace after a misunderstanding. The election judge took comments from Austin City Clerk Lucy Johnson to mean to get rid of the ballots, when Johnson meant to temporarily disregard the votes for Wellstone when counting the U.S. Senate race, according the Secretary of State recount report.

By following advice from Attorney General Mike Hatch, three of the canvassing board members decided to count those eight votes.

The board was made up of Secretary of State Mary Kiffmeyer, two Supreme Court justices and two district judges. Kiffmeyer and Judge Salvador Rosas expressed concern about counting any of the 17 ballots; Justice Helen Meyer, Justice Sam Hanson and Judge Heidi Schellhas backed the decision.

"It gives the greatest number of voters a say in the outcome of this race," Meyer said. "A very reasonable assumption is that the missing votes included at least eight votes for Sparks."

However, Rosas said the board should not count any of the votes.

Sparks thought the decision was a fair compromise.

"I think the judges took their time and were very deliberate to make sure each vote counts," Sparks said, noting the three hours it took to decide the results in District 27.

Schwab, however, thought the board made decision on the ballots quickly without much discussion.

Knaak said he also disagreed with some of the decisions the board made on the 32 contested ballots. Three contested ballots in which voters had picked Schwab were not counted because the election judges had not followed a procedure on election night.

"The law says that you have to count them, they said, 'no,'" Knaak said of the board.

Schwab's vote total was up 12 votes after the board made decisions on the contested ballots. Sparks also gained 12 from the contested ballots and for a total of 20 gained votes in the recount. Schwab received a total of 15,085 votes while Sparks got 15,096.

Knaak also questioned the input from Hatch. He said the attorney general has not usually been involved in canvassing board decisions. He said he thought it seemed there was some bias in the advice the attorney general gave.

"The decisions they came up with were surprising and it wasn't only me that was surprised, the other side as well," he said.

Sparks said Hatch advised the board from a legal standpoint. He didn't see any more conflict of interest than Kiffmeyer, a Republican, being on the board than Hatch, a Democrat, advising the board on legal matters.

Based the some of the board's decisions, however, Knaak said he thought Schwab would have a good case if she chose to appeal.

Schwab had not decided whether to appeal the decision as of Tuesday night.

"There a very good chance that it might happen," Schwab said.

Sparks said after five weeks of waiting, he feels "pretty good" about knowing the result.

"I think the people have decided," he said, reiterating that the judges did their best to make a fair decision.

He said he is looking forward to representing Mower and Freeborn counties and the District 27 precincts in Fillmore County and is ready to face "a very difficult session" in 2003.

Sparks was appointed to senate committees earlier this month. He will serve as the vice chair of the Commerce and Utilities committee and serve on the E-12 Budget Division and the Agriculture, General Legislation and Veterans Affairs committees.

With Tuesday's results the DFL will hold 35 seats to 31 for the Republicans in the Senate, with one independent. Republicans will control the House and the governor's office. The results could change pending an appeal by Sen. Deanna Weiner of Eagan, who has gone to court to challenge her 25-vote loss to Republican Mike McGinn, which was upheld during a November recount.

Schwab said she would like to continue working in public service.

"I don't believe it's time to hang up my saddle," Schwab said.

--The Albert Lea Tribune and The Associated Press contributed to this report

Cari Quam can be reached at 434-2235 or by e-mail at cari.quam@austindailyherald.com