Aaron Paul voters testify during first day of election contest hearing in Shakopee

A Shakopee resident of 27 years. A man who was out of the country on Election Day. A woman who voted early at Shakopee City Hall.

They all testified Monday they cast absentee ballots for Republican candidate Aaron Paul, votes that were mostly likely thrown away before being tabulated.

“I find it unacceptable” that “my ballot never made it through,” said one Paul voter, identified in court by number rather than name.

Paul’s attorney, Reid LeBeau, called them, plus three other voters, to the stand at the Scott County Judicial Center on the first day of a hearing on the House GOP’s election contest of DFL Rep. Brad Tabke’s victory in the Shakopee-area race to represent District 54A.

David Zoll, Tabke’s attorney, didn’t call any witnesses Monday who cast ballots for Tabke. But the lawyer said during his opening statement that he intends to show that the 20 uncounted absentee ballots at the center of the dispute wouldn’t change the final outcome of the election.

The court isn’t identifying the voter witnesses to protect their privacy, Judge Tracy Perzel said.

The ballots were likely thrown away inside their secrecy envelopes before being tabulated, according to the preliminary results of a Scott County investigation.

The county Canvassing Board certified Tabke’s 14-vote victory in the race Nov. 25. That prompted Paul and the House GOP to file a Nov. 29 lawsuit contending that elections officials engaged in “deliberate, serious and material violations” of state election law when they lost 21 ballots yet declared Tabke, the incumbent, the winner by 14 votes.

Twenty uncounted ballots were cast in Shakopee’s 10th Precinct, while one came from Precinct 12A. Officials chose not to look into the Precinct 12A ballot after noting it’s not uncommon for one voter to check in and not vote.

LeBeau said Monday that a special election is the only way to restore “certainty and confidence” in the outcome of the 54A race. Zoll likened that remedy to “disenfranchising” the roughly 22,000 voters who cast ballots Nov. 5 yet might not vote in another election.

“History shows only a fraction of the voters will cast their ballots and have their voices heard,” Zoll said.

The outcome of the hearing, set to resume Tuesday, could determine the balance of power in the Minnesota House. DFLers and Republicans will share power for the first time since 1979 if Tabke’s victory stands. If Paul were to win, Republicans would have a one-vote majority.

The attorneys spent hours Monday questioning Scott County Elections Administrator Julie Hanson about the county’s investigation into the uncounted ballots.

Hanson said the discrepancy in the number of absentee ballots received and counted occurred on or before Oct. 18 — the day after the early voting period ended. According to Hanson, the investigation showed Shakopee’s former city clerk processed absentee ballots Oct. 18. An election judge who testified Monday also said she saw the clerk processing the ballots that day.

Hanson said that the clerk, Lori Hensen, disputed that and told her she was engaged in another activity at the time. Hanson told the court she didn’t believe Hensen’s statement was credible.

Hensen didn’t testify Monday.

LeBeau also attempted to cast doubt on the county’s handling of absentee ballots and its subsequent investigation into their whereabouts.

He pointed to the Absentee Handbook, a training document Hanson’s team provides to cities and election judges. That document says secrecy envelopes must be stored — something officials in Shakopee’s 10th Precinct didn’t do, Hanson confirmed in her testimony.

“It is inappropriate, something that should not have happened,” she said about the disposal of the envelopes.

LeBeau also argued Hanson can’t say with absolute certainty what happened to the ballots.

Tabke’s attorney, Zoll, pushed back on that argument by using much of his cross examination to outline the steps officials took to investigate the episode and identify the 20 voters who cast uncounted ballots.

When asked by Zoll, Hanson confirmed that the ballots being thrown away inside their secrecy envelopes was the only plausible explanation for their absence.

Officials parsed Scott County and Minnesota Secretary of State records to identify the voters whose ballots went missing.

LeBeau also called Scott County Commissioner Dave Beer to testify. Beer, who serves on the county Canvassing Board, signed off on the results of a recount that put Tabke at a 14-vote advantage.

But he said he didn’t believe the results he confirmed were “accurate” because they excluded the uncounted ballots.