If Sen. Grace Schwab decides to appeal Tuesday's state Canvassing Board decision, the case would start in one of the three district courts where polling took place, but more than likely would end up in the state Supreme Court, said Fritz Knaak, Schwab's attorney.

Schwab, R-Albert Lea, has six more days to decide whether to appeal the board's decision to certify Democrat Dan Sparks as senator for District 27.

Knaak said he thinks Schwab would have a solid case if she appeals. The Canvassing Board decided to count eight votes that Sparks lost after the recount in Austin's 2nd Ward, 1st Precinct, where 17 ballots had been destroyed.

Board member Salvador Rosas 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 an 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.

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.

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.

Chief Deputy Attorney Kris Eiden rebuffed that, saying, "It seems appropriate the Canvassing Board apply the same standard the court would have applied."

Knaak also found fault with some of the decisions the board made regarding the 32 contested ballots. Schwab and Sparks both received 12 votes from those ballots. He said three ballots clearly marked for Schwab were not counted because election judges did not follow a procedure on election night.

If the case is appealed, the Supreme Court Justice will share a list of judges for each side to choose from, Knaak said. After the selected judge's decision is made, there are 10 days to appeal to the Supreme Court, he said.

The judge can rule in a number of ways. The judge can find the election invalid or illegal and order a new election, Knaak said. The court can leave the decision up to the State Senate, he said. It can also order the Secretary of State's office to issue a new certificate, Knaak said.

If the senate is to make the decision, the Supreme Court Justice refers the certificate issued by the Canvassing Board to the senate rules committee. From there the entire Senate votes to accept or reject the certificate, Knaak said. A simple majority is need for the decision.

On Tuesday, the Canvassing Board declared Sparks the winner by 11 votes in the Senate District 27 race. After the Nov. 5 results, Sparks led by 33 votes. After the recount, he led by only three before the contested ballots and 17 destroyed ballots were determined.

Cari Quam and Masaaki Harada can be reached by e-mail at newsroom@austindailyherald.com