Jeanette Dennison, an election judge in an Austin precinct, admitted Friday she took 17 ballots from Austin City Hall Nov. 6 and burned them in her fireplace.

Earlier in the day, Dennison had pleaded the 5th Amendment because she thought she might face federal charges if she said anything that might incriminate her. She had already been given immunity from the Mower County Attorney's office and the Minnesota Attorney General's office. Her attorney, Scott Richardson, contacted the U.S. Attorney's Office in the Twin Cities Friday and it sent him a letter granting her immunity for Friday's testimony.

The hearing of an appeal of the Senate District 27 certification was completed Friday evening. Judge Joseph Quinn, of Anoka County, will need to announce his decision by Monday after going through testimony, the 32 ballots and other evidence.

A state statute says the judge can rescind Dan Sparks' election certificate, said Fritz Knaak, Purcell's attorney. But the Article IV, Section 6 of the Minnesota state constitution says that the state legislature has the authority to "judge the election returns and the eligibility of its members."

That means Quinn's opinion may only be used to advise legislators. The case, however, is likely to go to the Supreme Court.

Tom Purcell, a former Austin City Council member, is appealing the Dec. 10 decision by the state Canvassing Board to certify Sparks senator by 11 votes over incumbent Grace Schwab. The board decided to award Sparks eight votes he lost after the recount in the 2nd Ward, 1st Precinct. In that precinct, Dennison burned 17 ballots after election night.

Purcell has said decisions made about the 17 ballots and some of the 32 contested ballots were a disservice to voters in District 27.

Dennison says she burned ballots with junk mail

Witnesses' testimony about the 17 destroyed ballots ended after Dennison took the stand Friday afternoon.

She said she, another election judge and Assistant City Clerk Cheryl Hayes took absentee ballots out of sealed boxes early Nov. 6 to reconcile vote totals in the U.S. Senate race.

The numbers were not adding up and Dennison overhead City Clerk Lucy Johnson tell Hayes to take the Wellstone ballots "and get them out of here."

"She said get them out of here and I assumed she didn't want them in the room," she said.

She said she counted out 17 ballots, but said she couldn't remember if they had votes for Wellstone. She also did not remember how she, the other election judge and Hayes sorted the ballots.

In testimony Thursday, election judge Sherri Forman and Hayes had said the ballots were sorted by candidate.

Dennison said she asked Hayes for a plastic bag and put the ballots in it. She said she did not tell anyone about the ballots while she was in city hall.

Dennison said she took them home and put them with her junk mail.

"I burn my third class mail so my name and address aren't floating around," she said.

She said she didn't think the ballots "should be floating around either."

She said she burned them one or two days after the election.

Knaak asked if she looked at the ballots to see who was voted for. She said she had not.

Quinn asked Dennison if there were other races on the ballots. She said she didn't know and he showed her an example of an Austin absentee ballot. She said that is what the ballots looked like. He asked her again if she thought there were other races on the ballot.

"I didn't really think about that, but yes there probably were," she said.

Dennison has been an election judge for the past eight years and during the 1970s. She said she receives training before each election. She also confirmed that she is a Democrat.

When Dennison was called to testify Thursday, she was not present. Mower County attempted to subpoena her Tuesday, but she did not answer the door. The Mower County Sheriff's Department was able to subpoena her by Friday morning.

Attorneys discuss 32 contested ballots

The attorneys also went through the 32 contested ballots for Quinn, detailing how they had been ruled on by local election officials, the Secretary of State Office's legal analyst and the state Canvassing Board.

Quinn had said Thursday that he is not picking up where the state Canvassing Board left off, but looking at the ballots and evidence and making his own ruling.

Knaak and Brian Rice, Sparks' attorney made their points on each of the ballots. The most attention was given to six ballots were the voters had marked them incorrectly.

In some of the ballots the attorneys thought they should be counted as overvotes because the voters appeared to have voted for more than candidate.

In others attorneys said the votes could be counted for a candidate because the ballots were marked, although incorrectly, in a consistent manner.

The state Canvassing Board ruled that both Sparks and incumbent Grace Schwab receive 11 votes apiece from the 32 contested ballots. The remaining 10 ballots were not counted for any candidate.

17 destroyed ballots debated

In closing statements, Knaak and Rice voiced how they think the 17 destroyed ballots should be handled based on state statutes and previous election cases.

Knaak said the eight votes the state Canvassing Board awarded to Sparks after he lost them in the recount of the 2nd Ward, 1st Precinct, should not be counted because the ballots were destroyed. Citing previous election cases, Knaak said the ballots themselves are the "best evidence" in an election contest.

He pointed to testimony from Johnson and in which she said manually counting the ballots is the most accurate way to come up with election totals. He also said because Dennison was a DFL election judge, she may have acted to benefit her own party. Because of this, those destroyed ballots should not be counted because Sparks would benefit another's wrongdoing, Knaak said.

But Rice said Dennison did not act to benefit Sparks. He said if that's the case, Forman, a Republican election judge, is just as culpable as Dennison because she said during her testimony she knew Dennison took the ballots out of City Hall.

Rice also said that while ballots are the best evidence in a recount, if the ballots have been tampered with after the first count, then the original votes totals should be used. He said using the election night vote totals has been the procedure used in Minnesota for 120 years and has not changed.

Quinn asked if he should consider that the results of the race could change depending on how he ruled on the 17 destroyed ballots. He said ruling on this case would not be easy.

"This race is so close. It's frightening to take this home," Quinn said.

Purcell, Sparks react to testimony

Purcell said after the hearing that the attorneys discussed all of the points he thought were important.

"Everything in my mind got on the floor and out to the judge," he said.

Sparks, who sat through proceeding both days, said he is planning to be sworn in as senator Jan. 7. He thinks, ultimately, the state senate will determine who gets the District 27 seat.

During the proceedings, Quinn questioned whether counting eight of 17 burned ballots was appropriate, especially when the other nine ballots were not counted for anyone.

Rice said the Canvassing Board wanted to make as many votes as possible count.

Sparks said even if he did not receive those eight votes he would still be ahead of Schwab. He said he did not think the judge would rule on the 32 contested ballots differently from the state Canvassing Board.

Sparks said Dennison's testimony was "amazing."

"If anything, we've learned that an election is something to be taken seriously," Sparks said. "Every vote counts."

Grace Schwab was not present for any of the proceedings, but her husband, Steve Schwab attended part of the hearings Thursday and Friday.

Steve Schwab said he came to hear testimony about the 32 contested ballots and the 17 burned ballots.

"It's still incomprehensible to me," he said of the election judge's actions.

He said Grace has been told she's lost three times since Nov. 5 and he said they both want closure to the election.

"That's what's taking its toll on Grace," Steve said. "She wants a fair decision regardless of what it is."

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