OPINION
MEYER, Justice.
Petitioners Norm Coleman, Cullen Shee-han, and Cara Beth Lindell filed a petition and an amended petition pursuant to Minn.Stat. § 204B.44 (2008) concerning the November 4, 2008, election for United States Senator from the State of Minnesota. Petitioners asked the court to order, among other things, that no rejected absentee ballots be counted in the administrative recount then underway and that all issues related to such ballots be raised, if at all, in an election contest under Minn. Stat. ch. 209 (2008). After expedited briefing, the court heard oral argument on December 17, 2008. So as not to impede the orderly administration of the election, the court issued an order on December 18, 2008, granting in part and denying in part the petition, with this opinion to follow.
At issue here are absentee ballot return envelopes that were rejected by local election officials on and before election day. The process of voting by absentee ballot is governed by Minn.Stat. ch. 208B (2008). A voter first makes written application for an absentee ballot. MinmStat. § 208B.04 (2008). An absentee ballot is provided to the voter, along with a ballot envelope and a return envelope. Minn.Stat. § 203B.06-.07 (2008). The voter marks the ballot with his votes, places the ballot in the ballot envelope, and places the sealed ballot envelope (and a voter registration application, where needed) in the return envelope. See Minn.Stat. § 203B.08 (2008). The voter fills in his name and address on the return envelope, completes a certificate of eligibility to vote by absentee ballot printed on the return envelope, and signs the certificate before a witness who also signs the return envelope. See Minn.Stat. § 203B.07, subd. 3. The return envelope (containing the ballot envelope in which the completed ballot has been placed) is then returned to the county auditor or municipal clerk. Minn.Stat. § 203B.08, subd. 1.
Under Minn.Stat. § 203B.12, subd. 2 (2008), two or more election judges examine each return envelope and mark it [221] either “accepted” or “rejected.”1 The election judges are to mark the return envelope “accepted” if they are satisfied that all of the following four conditions are met:
(1) the voter’s name and address on the return envelope are the same as the information provided on the absentee ballot application;
(2) the voter’s signature on the return envelope is the genuine signature of the individual who made the application for an absentee ballot, and the certificate of eligibility to vote by absentee ballot has been completed as prescribed in the directions for casting an absentee ballot;
(3) the voter is registered and eligible to vote in the precinct or has included a properly completed voter registration application in the return envelope; and
(4) the voter has not already voted in that election, either in person or by absentee ballot.
Id. If the absentee ballot return envelope is “accepted,” it is opened and the ballot envelope inside is placed in a separate ballot container. Minn.Stat. § 203B.12, subd. 4 (2008). The absentee ballot container is opened on election night, the ballot envelopes inside are opened, and the enclosed ballots are removed and deposited in the ballot box to be counted. Id.
If, on the other hand, any of the four requirements under section 203B.12 have not been met, the election judges are to mark the return envelope “rejected.”2 Section 203B.12, subdivision 2, states:
“There is no other reason for rejecting an absentee ballot.” Rejected absentee ballot return envelopes are returned unopened to the county auditor, and the ballots they contain are not counted on election night. Id.
On November 18, 2008, the Minnesota State Canvassing Board (Board) met to certify the results of the election held on November 4, 2008. Because the difference in votes cast for U.S. Senate candidates Norm Coleman and Al Franken was less than one-half of one percent, the Board ordered an automatic manual recount as required by Minn.Stat. § 204C.35, subd. 1(b) (2008).
According to the minutes of the November 18 meeting of the State Canvassing Board, a representative of Al Franken and the A1 Franken for Senate campaign urged the Board to review all rejected absentee ballot return envelopes and include in its recount the votes of any absentee ballots that were improperly rejected. This request was opposed by representatives of Norm Coleman and the Norm Coleman for Senate campaign. In advance of the November 18 meeting, the Secretary of State had received an opinion of the Minnesota Attorney General’s Office that absentee ballots that were rejected by election judges under Minn.Stat. § 203B.12, subd. 2, were not “cast” in the election and therefore were not within the scope of an administrative recount under Minn.Stat. § 204C.35, subd. 3 (2008). At its November 26, 2008, meeting, the Board unani[222] mously rejected the Franken campaign’s request as outside the scope of the Board’s statutory authority under Minn.Stat. § 2040.33, subd. 3 (2008). However, the Board requested an opinion of the Attorney General as to whether and by what means absentee ballots that were not rejected for one of the four statutory reasons could be tabulated.
On or around December 2, 2008, the Secretary of State’s Office asked local election officials to review all previously rejected absentee ballot return envelopes and determine the number of envelopes that were rejected for each of the four reasons provided in Minn.Stat. § 203B.12, subd. 2. The Secretary of State’s Office asked local election officials to determine as well the number of absentee ballot return envelopes rejected for some reason other than one of the reasons provided in Minn.Stat. § 203B.12, subd. 2, or because local election officials were mistaken in concluding that the ballot envelope failed to satisfy one or more of the conditions in section 203B.12, subdivision 2. The Secretary of State’s Office provided more detailed instructions for the sorting process on December 4, 2008.
By letter to the members of the State Canvassing Board dated December 10, 2008, the Minnesota Attorney General’s Office identified and described four statutory mechanisms for correcting errors in the election process: correction of errors by county election officials as part of the canvassing process under Minn.Stat. § 204C.38 (2008) where the candidates agreed; correction of errors under Minn. Stat. § 204C.39 (2008) where the candidates did not agree; a petition filed under Minn.Stat. § 204B.44; and an election contest under Minn.Stat. ch. 209. The Attorney General’s Office opined that local canvassing officials could amend their election returns under either section 204C.38 or 204C.39 before the results of the election were finalized. Finally, citing our opinion in In re Andersen, 264 Minn. 257, 119 N.W.2d 1 (1962), the Attorney General’s Office opined that this court would likely uphold a determination by the State Canvassing Board to accept amended reports from county canvassing boards that included absentee ballots that were initially improperly rejected by local election officials due to administrative errors.
At its December 12, 2008, meeting, the State Canvassing Board was advised by a representative of the Secretary of State that in the 49 counties and municipalities that had thus far completed their voluntary sorting and reported the results to the Secretary of State, there were 4,823 rejected absentee ballot return envelopes, of which 638 had been determined by local election officials to have been improperly rejected. However, some counties had declined to participate in the voluntary sorting process. The Board unanimously recommended, but declined to order, that all county canvassing boards review rejected absentee ballot return envelopes for the purpose of identifying obvious errors in the rejection of those ballots, correcting those errors, and reporting new vote totals to the State Canvassing Board.
The petition and an amended petition in this case were filed on December 15, 2008. The petition alleged that the State Canvassing Board failed to provide uniform guidance to the counties on how to determine whether or not an absentee ballot return envelope was improperly rejected. The petition further alleged that the guidance given to counties by the Secretary of State’s Office for sorting the previously rejected absentee ballot envelopes was incomplete and incorrect, resulting in the various counties applying different standards. The petition asserted that previ[223] ously rejected absentee ballots should be addressed, if at all, in an election contest under Minn.Stat. ch. 209, and not as part of the recount process.
A1 Franken and the A1 Franken for Senate campaign asserted, in opposition to the petition, that county canvassing boards have the authority under Minn.Stat. § 204C.39 and our decision in Andersen to review uncounted absentee ballots and correct errors in the exclusion of those ballots.
We issued an order on December 18, 2008, that granted in part and denied in part the petition. We agreed with petitioners that improper rejection of an absentee ballot envelope is not within the scope of errors subject to correction by county canvassing boards during an administrative recount proceeding under either Minn.Stat. § 204C.38 or § 204C.39. Separately, we observed that, where local election officials and the candidates agreed that an absentee ballot return envelope was improperly rejected, correction of that error should not have to await an election contest. We therefore ordered that any absentee ballot return envelope that local election officials and the candidates agreed was rejected in error should be opened by local election officials and its ballot counted, subject to challenge by either candidate as to voter intent, in accordance with the procedures used with respect to all ballots reviewed in the recount.
The question before us on December 18, 2008, was whether improperly rejected absentee ballots are within the scope of errors subject to correction by county canvassing boards that may be filed in an amended report under Minn.Stat. § 204C.38 or § 204C.39. Put differently, must the resolution of whether rejected absentee ballots were validly cast for the office await an election contest under Minn.Stat. ch. 209?
I.
We begin by briefly reviewing the statutory provisions for processing of ballots in an election, as prescribed in Minn. Stat. ch. 204C (2008).
Under Minn.Stat. § 204C.20, subd. 1 (2008), local election officials first determine the number of ballots to be counted on election night by adding the number of return envelopes from accepted absentee ballots to the number of signed voters’ certificates, or to the number of names entered in the election register. Procedures are prescribed for situations in which there are more ballots in the ballot box than the number of ballots to be counted. Id., subd. 2. Once the votes contained on the ballots have been counted, the election judges prepare a summary statement that reports: (1) the number of votes each candidate received; (2) the number of “undervotes” and “overvotes” for each office;3 (3) the numbers of totally blank, totally defective, spoiled, and unused ballots; (4) the number of individuals who voted at the election in the precinct; and (5) the number of voters who registered on election day in the precinct. Minn.Stat. § 204C.24, subd. 1 (2008). These are the precinct “returns” transmitted to the county canvassing boards through the county auditors.
The counted ballots, along with any defective and blank ballots, are sealed in envelopes and delivered, together with the summary statement of returns, to the county auditor. Minn.Stat. §§ 204C.25, .27 (2008). Minnesota Statutes § 204C.28, [224] subd. 1 (2008), bars the county auditor from opening the envelopes containing the ballots themselves.
Within seven days of the state general election, the respective county canvassing boards meet to canvass the general election returns delivered by local election officials to the respective county auditors. Minn.Stat. § 204C.33, subd. 1 (2008). At that stage of the process, Minnesota law allows county canvassing boards to open the envelopes containing the ballots themselves only to retrieve returns that were inadvertently sealed in the envelopes with the ballots. Minn.Stat. § 204C.28, subd. 1. Upon completion of the canvass, the county canvassing board reports to the county auditor: (1) the number of individuals voting in the election in the county; (2) the number of individuals registered to vote in each precinct; and (3) the names of the candidates for each office and the number of votes received by each candidate in the county. Minn.Stat. § 204C.33, subd. 1. Certified copies of the county canvassing board reports are then transmitted by the county auditors to the Secretary of State. Id. These summary statements are transmitted in envelopes that the legislature requires to be labeled: “Election Returns.” Minn.Stat. § 204C.37 (2008).
There are two statutory mechanisms by which county canvassing boards may correct errors made by local election officials. One mechanism applies where the candidates agree an error has occurred, and the other applies where the candidates do not agree.
Minnesota Statutes § 204C.38 provides that if the candidates for an office unanimously agree in writing that election judges in a particular precinct or a county canvassing board have made “an obvious error in the counting or recording of the votes for that office,” the county canvassing board “shall” correct the error “as specified in the [candidates’] agreement.” Minn.Stat. § 204C.38, subds. 1 and 2. Thus, by the terms of the statute, an agreement of the candidates that an error occurred in the counting or recording of votes is binding on the county canvassing board.
If the candidates do not agree, Minn. Stat. § 204C.39, subd. 1, allows a county canvassing board to determine by majority vote that election judges made “an obvious error in counting or recording the votes for an office.”4 But the statute does not authorize the county canvassing board to correct such errors unilaterally. Instead, section 204C.39, subdivision 1, requires the county canvassing board to notify the can[225] didates of its determination that an error has been made. Any candidate who receives such a notice, or who otherwise believes that election judges in a particular precinct have made an obvious error in the counting or recording of the votes for an office, may apply to the district court of that county for an order determining whether an obvious error has been made. Id. If the court finds that an obvious error has been made, it directs the county canvassing board to inspect the ballots of the precinct in order to correct the error. Id. After inspecting the ballots, the county canvassing board files an addendum to its initial report reflecting the total number of votes received by each candidate for the office. Id., subd. 3.
[224] A county canvassing board may determine by majority vote that the election judges have made an obvious error in counting or recording the votes for an office. The county canvassing board shall then promptly notify all candidates for that office of the determination, including a description of the error. A candidate who receives notification pursuant to this subdivision or any candidate who believes that the election judges in a precinct have made an obvious error in the counting or recording of the votes for an office may apply without unreasonable delay to the district court of the county containing the precinct in which the alleged error was made for an order determining whether or not an obvious error has been made. The applicant shall describe the alleged error in the application and may submit additional evidence as directed by the court. The applicant shall notify the county canvassing board and all candidates for the affected office in the manner directed by the court. If the court finds that the election judges made an obvious error it shall issue an order specifying the error and directing the county canvassing board to inspect the ballots and returns of the precinct in order to correct the error and to proceed further in accordance with this section or otherwise as the court may direct.
[225] On the second Tuesday following the state general election, the State Canvassing Board meets to canvass the certified copies of the returns of the county canvassing boards. Minn.Stat. § 204C.33, subd. 3. Based on those reports, the Board prepares a report stating the number of individuals who voted in the state (county-by-county) and the number of votes received by each of the candidates (county-by-county). Id5
The Minnesota legislature has established two statutory procedures for resolving disputes concerning the outcome of elections: a manual administrative recount under Minn.Stat. § 204C.35 and an election contest under Minn.Stat. ch. 209.
A manual administrative recount is intended to ensure that the votes cast in the election were accurately counted. When the margin of victory in an election is less than one-half of one percent, as it was in this election, a manual recount is automatic. Minn.Stat. § 204C.35, subd. 1(b) (2008). It is this automatic manual recount that was ordered by the State Canvassing Board at its November 18, 2008, meeting.
Section 204C.35, subdivision 3, limits the scope of an administrative recount “to the determination of the number of votes validly cast for the office to be recounted. Only the ballots cast in the election and the summary statements certified by the election judges may be considered in the recount process.” Thus, the scope of the errors that may be corrected as a result of the recount is limited to errors in “the determination of the number of votes validly cast for the office.” At the same time, the information available to those conducting the recount is also limited: only the ballots actually cast in the election and the summary statements certified by the election judges on election night are to be considered.
Minnesota Statutes § 204C.361(a) (2008) requires the Secretary of State to adopt uniform recount procedures, and requires that all recounts be conducted in accordance with those rules. Under Minn. R. 8235.0700 (2007), the materials available during the administrative recount are the summary statements prepared by election judges on election night and the sealed envelopes of voted ballots, although other materials are to be available upon request. During the recount, the sealed envelopes of ballots are opened and the ballots inside are recounted in accordance with Minn. Stat. § 204C.22 (2008) (providing standards for determining voter intent). Minn. R. 8235.0800 (2007).
The other statutory procedure established by the legislature for resolving elec[226] tion disputes is an election contest under Minn.Stat. ch. 209. In contrast to the limited scope of an administrative recount, an election contest under chapter 209 “may be brought over an irregularity in the conduct of an election or canvass of votes, over the question of who received the largest number of votes legally cast, ... or on the grounds of deliberate, serious, and material violations of the Minnesota Election Law.” Minn.Stat. § 209.02, subd. 1 (2008).
Notice of an election contest must be served and filed within seven days after the completion of the canvass. Minn.Stat. § 209.021, subd. 1 (2008). In the case of an election for statewide office, the notice of election contest must be filed in Ramsey County District Court. Id., subd. 2. The case is heard by a panel of three judges, Minn.Stat. § 209.045 (2008), and is conducted, as far as is practicable, as a civil trial, Minn.Stat. § 209.065 (2008). When the election contest concerns a congressional office, the only question to be decided is which candidate received the highest number of votes legally cast at the election. Minn.Stat. § 209.12 (2008). Nevertheless, evidence on any other issues specified in the notice of election contest is to be preserved and forwarded to the presiding officer of the Senate or House of Representatives of the United States, as the case may be. Id.
II.
With this statutory background, we turn to the question of whether improperly rejected absentee ballots are within the scope of errors subject to correction by a county canvassing board under Minn.Stat. § 204C.39, or must the resolution of whether those ballots were validly cast for the office await an election contest proceeding under Minn.Stat. ch. 209. Petitioners seek to prevent the State Canvassing Board from including in its recount certification any amended results from county canvassing boards that determined that absentee ballot return envelopes had been improperly rejected by local election officials. We consider first whether there is authority for the State Canvassing Board to accept such amended election returns, which in this case turns on the authority of county canvassing boards to amend their returns at this stage of the election process — that is, after the State Canvassing Board has canvassed the original returns and a mandatory administrative recount is under way.
The December 10 letter from the Attorney General’s Office to the State Canvassing Board opined that Minn.Stat. § 204C.39 is an available mechanism for the correction of erroneous rejections of absentee ballot return envelopes. As described earlier, Minn.Stat. § 204C.39 permits county canvassing boards that have already reported the results of their canvasses to the State Canvassing Board to identify “an obvious error in the counting or recording of the votes” and provides a process by which such errors can be corrected. Thus, a threshold issue in the case is whether the erroneous rejection of an absentee ballot return envelope on election night is “an obvious error in the counting or recording of the votes” that can be addressed under section 204C.39. We conclude that it is not.
The authority of county canvassing boards under section 204C.39 is limited to correction of “obvious error[s] in the counting or recording of the votes.”6 We are not writing on a blank slate in deter[227] mining what the legislature meant by “obvious errorfs] in the counting or recording of the votes.” In Andersen, we interpreted the same phrase in a predecessor statute, Minn.Stat. § 204.30, subd. 1 (1961). We explained: “The term ‘obvious error’ as used in our statute is one that defies exact definition. About the only definition that can be given to it is that some error appears evident from an examination of the returns made by the various precincts.” Andersen, 264 Minn, at 261, 119 N.W.2d at 5 (emphasis added). This interpretation limiting the scope of errors subject to correction by county canvassing boards to those “evident from an examination of the returns made by the various precincts” applies to the current statute, section 204C.39, as well. This application is based on the presumption that “when a court of last resort has construed the language of a law, the legislature in subsequent laws on the subject matter intends the same construction to be placed upon such language.” Minn.Stat. § 645.17(4) (2008).
The question, then, is whether an error in rejection of an absentee ballot “appears evident from an examination of the returns made by the various precincts.” Determination of whether an absentee ballot was correctly rejected would require examination, at a minimum, of the absentee ballot return envelope, but those envelopes are not part of the “returns” made by the precincts. We have defined “returns” as “an official statement of votes cast at an election, transmitted to some authorized custodian, for the purpose of being canvassed by some proper authority.” State ex rel. Thompson v. Common Council, 25 Minn. 106, 108-09, 1878 WL 3561, at ** 2 (1878). Therefore, in this context, “returns” made by the precincts means the results of the counting of votes in the precinct, as recorded on precinct summary statements required by statute. This is confirmed by the statutory process and the use of “returns” in those statutes.
After the votes marked on the ballots have been counted, the precinct election judges are directed to “write the number in the proper place on the summary statements.” Minn.Stat. § 204C.21 (2008). The precinct election judges are required to complete three copies of the summary statements, Minn.Stat. § 204C.24, subd. 1 (2008),7 and each set of completed summary statements is then placed in an envelope and sealed, id., subd. 2. These envelopes are required to be labeled as “Summary statements of the returns of the ... election precinct.” Id. (emphasis added). The envelopes containing the summary statements of the returns, along with separate sealed envelopes containing the ballots counted and the blank and spoiled [228] ballots, are delivered by the precinct election judges to the county auditor’s office (or to the municipal clerk for transmittal to the auditor’s office). Minn.Stat. § 204C.27 (2008).
The county canvassing boards then meet to “canvass the general election returns delivered to the county auditor.” Minn. Stat. § 204C.33, subd. 1. The “returns” are the numbers in the precinct summary statements that had been delivered to the county auditor, and the “canvass” is simply the compilation and reporting of those numbers. See State ex rel. Thompson, 25 Minn, at 108-09, 1878 WL 3561, at **2 (“With reference to the analogies of our general statutory law respecting the canvassing of votes cast at elections, the word ‘returns’ is entitled to be taken as meaning an official statement of votes cast at an election, transmitted to some authorized custodian, for the purpose of being canvassed by some proper authority.”); see also Moon v. Harris, 122 Minn. 138, 141-43, 142 N.W. 12, 13-14 (1913) (referring separately to “ballots” and “returns,” and stating: “The official returns are evidence of the votes cast. The presumption is that they correctly state the result of an accurate count of the ballots.”). This is also evidenced by the symmetry between the information that Minn.Stat. § 204C.24, subd. 1, requires in the precinct summary statements (see footnote 7, supra) and the composite information that Minn.Stat. § 204C.33, subd. 1, requires county canvassing boards to report.8 Indeed, the county canvassing board report required by section 204C.33, subd. 1, must be sent to the Secretary of State in an envelope labeled “Election Returns.” Minn.Stat. § 204C.37.
Thus, the “canvass” of “returns” by the county canvassing board is a narrow process, limited to compilation and reporting of numbers contained in the precinct summary statements. This limited scope is consistent with our long-standing holding that the function of canvassing election returns is ministerial. See Hunt v. Hoffman, 125 Minn. 249, 254, 146 N.W. 733, 735 (1914) (citing O’Ferrall v. Colby, 2 Minn. 180 (Gil.148) (1858)).
This ministerial function of canvassing the returns entails review only of the precinct summary statements of returns, not examination of actual ballots. Although each precinct’s counted ballots, as well as their blank and spoiled ballots, are delivered to the county auditor along with the summary statement of returns, each in separate sealed envelopes, the legislature has authorized the county canvassing boards to have access only to the summary statements.9 Minnesota Statutes [229] § 204C.28, subd. 1, provides that “[t]he envelopes [containing ballots] may be opened by the county canvassing board if necessary to procure election returns that the election judges inadvertently may have sealed in the envelopes with the ballots.” By providing that the only purpose for which a county canvassing board may open the sealed envelopes containing ballots is to retrieve the election returns, not for access to the ballots, the legislature made it clear that (a) the “election returns” are something different than the ballots delivered to the county auditor, and (b) that the normal function of the county canvassing boards does not include inspection of the ballots, which are to remain in sealed envelopes.10
Returning to section 204B.39, as stated in Andersen, “obvious error[s]” means those that “appear[] evident from an examination of the returns made by the various precincts.” 264 Minn, at 261, 119 N.W.2d at 5. As we have seen, the returns made by the precincts means only the numbers reported on the summary statements. An error in rejection of an absentee ballot would not be evident from those reports, and in fact could not be determined without examination, at a minimum, of the absentee ballot return envelope. There is no suggestion in the statutes that county canvassing boards have access to those envelopes as part of their ministerial canvassing function.
In addition, given both the narrow scope of returns and the ministerial function of county canvassing boards, it is not surprising that the legislature limited the errors that county canvassing boards may address under section 204C.39 to errors in “counting or recording of the votes,” as that is just what is reflected in the precinct summary statements of returns that the boards review. Not only are errors in the rejection of absentee ballot return envelopes not evident from an examination of the returns, they are not errors in “counting or recording of the votes.” Absentee ballot return envelopes that have been rejected, rightly or wrongly, by local election officials are not opened on election night and therefore their votes have not been “recorded.” Neither are rejected absentee ballot envelopes included in the number of ballots to be counted under Minn.Stat. § 204C.20, subd. 1. Under this statute, the number of ballots to be counted on election night is the sum of the number of names entered in the election register and the number of return envelopes from accepted absentee ballots.11 Because erroneous rejection of an absentee ballot envelope is not evident from an examination of the returns and because rejected absentee ballots are neither counted nor recorded, [230] the erroneous rejection of an absentee ballot return envelope is outside the scope of the authority conferred by the legislature in section 204C.39 on county canvassing boards for identification of “obvious error[s] in the counting or recording of the votes.”
In addition, even if errors in the rejection of absentee ballots were “obvious error[s] in the counting or recording of the votes,” section 204C.39 would not allow county canvassing boards unilaterally to correct them. Rather, section 204C.39 would require that the county canvassing boards notify the candidates of the errors; it would then be up to the candidates to petition the district court for an order determining whether an error had been made and requiring the affected county canvassing board to first reexamine the ballots in the presence of the parties and then correct any error. Minn.Stat. § 204C.39, subds. 1 and 2.12
Thus, the unilateral correction by county canvassing boards of errors that may have been made in the rejection of absentee ballots is not provided for by section 204C.39, both because the type of error is beyond the scope of obvious errors in the counting and recording of ballots and because the process prescribed by the legislature requires a district court order. This does not mean the errors must remain uncorrected, but under the scheme created by the legislature, these errors are to be addressed in an election contest. While a more flexible process might be advisable as a matter of policy, as argued by the dissents, that is for the legislature to decide. Therefore, in the recount circumstances presented here, the Secretary of State and the State Canvassing Board lack authority under Minn.Stat. § 204C.39 to accept summary statements from county canvassing boards that have been amended to reflect the acceptance of previously rejected absentee ballots.
III.
Petitioners further contend that the question of whether absentee ballot [231] return envelopes were properly or improperly rejected can be addressed, if at all, only in an election contest under Minn. Stat. ch. 209. Minnesota Statutes § 209.02, subd. 1, allows any eligible voter or candidate to contest the election of any person to the United States Senate, among other offices. “The contest may be brought over an irregularity in the conduct of an election or canvass of votes, over the question of who received the largest number of votes legally cast, ... or on the grounds of deliberate, serious, and material violations of the Minnesota Election Law.” Id.
We agree with petitioners that whether absentee ballots were rejected erroneously may be addressed in an election contest under chapter 209. An error in rejecting an absentee ballot return envelope is “an irregularity in the conduct of an election” that affects “the question of who received the largest number of votes legally cast.” Minn.Stat. § 209.02, subd. 1. Nevertheless, we disagree that relief must be entirely denied in this proceeding under Minn.Stat. § 204B.44.
Petitioners invoked our jurisdiction in this matter under section 204B.44, which allows us to order the correction of “any wrongful act, omission, or error of any election judge, municipal clerk, county auditor, canvassing board or any of its members, the secretary of state, or any other individual charged with any duty concerning an election.” 13 The Franken campaign argues that our opinion in Andersen is authority for allowing county canvassing boards to amend their returns to reflect all absentee ballots that the county canvassing boards determine were erroneously rejected on election night.
In Andersen, the issue was whether the State Canvassing Board could accept amended returns submitted by ten county canvassing boards, correcting errors under a predecessor statute to section 204C.B9, after the county boards had submitted their initial returns, but before the State Canvassing Board had completed its canvass of the county board returns. 264 Minn, at 258-59, 119 N.W.2d at 3. The dispute in Andersen was about the timing of the corrections. One candidate argued that a county canvassing board was “func-tus officio” after completing its original canvass and could not be “revived” to correct errors. Id. at 264-65, 119 N.W.2d at 6-7. The other candidate urged the court to adopt a construction of the statute “permitting a county canvassing board, upon discovery of obvious errors, to reconvene and correct those errors at any time, at least until the state canvassing board meets.” Id. at 263,119 N.W.2d at 5.
We concluded that the statute contemplated corrections by county boards only during their initial canvass. The statute itself began with the phrase “[i]f in conducting the canvass of votes,” Minn.Stat. § 204.30, subd. 1 (1961), and we explained that “[a] literal reading of the statute would justify the conclusion that in elections involving state offices the corrective action must be taken before the county board certifies its result to the secretary of [232] state.” Andersen, 264 Minn, at 262-63, 119 N.W.2d at 5. Similarly, we stated: “[I]t seems quite clear that what the legislature had in mind was to permit a correction of errors at the time the canvass was being made.” Id. at 264, 119 N.W.2d at 6 (emphasis added).
We rejected the argument that a county canvassing board could not be “revived” after its initial canvass, but not because the statute required that conclusion. Rather, we explained that the court’s authority to order correction of errors under MinmStat. § 203.38 (1961), the predecessor to section 204B.44, should not be negated. Andersen, 264 Minn, at 265, 119 N.W.2d at 7 (“If the board is functus offi-cio after having completed its original canvass, ..., it would mean that ... the court could not revive the county canvassing board in order to compel it to do any act which it had neglected to do.”). We reasoned that if the legislature could provide for the court to compel a county canvassing board to correct an error after the board had adjourned, it could provide for a board to correct errors on its own after adjournment. Id. at 267, 119 N.W.2d at 8. But, we added “[i]t may be that § 204.30 does not go that far.... ” Id. Moreover, we observed that although the statute was silent on the point, “[i]n any construction, there should be a cutoff at that point [when the state canvassing board meets].” Id. at 263, 119 N.W.2d at 5-6. Here, the errors were discovered and the corrections would be made after the initial canvass by the State Canvassing Board and during an administrative recount.
Thus, in Andersen we did not hold that the corrections made by the county boards after their initial canvasses were authorized under the existing statute. Instead, we held that the amended returns should be considered by the State Canvassing Board, despite the fact that the timing of their submission was not what statutory procedures would allow. That holding was based on the principle that once the true count of the votes was known, the court should not require an incorrect count to be used. See, e.g., id. at 273, 119 N.W.2d at 12. We observed: “As long as there is substantial compliance with our laws and no showing of fraud or bad faith, the true result of an election, once ascertained, ought not be defeated by an innocent failure to comply strictly with the statute.” Id. at 267, 119 N.W.2d at 8 (emphasis added). Application of that principle necessarily was premised on our conclusion, repeated throughout the decision, that the county boards’ amended returns reflected “the correct tally of the vote.” 264 Minn, at 269, 119 N.W.2d at 9-10. Central to that conclusion was the lack of dispute about the accuracy of the amended results. We stated, for example, “To now hold that the results of this election must be based on the return that everyone concedes is erroneous would be a perversion of our whole election process.... ” Id. at 269, 119 N.W.2d at 9 (emphasis added). See also id. at 272, 119 N.W.2d at 11 (“[I]it appears to us that the amended returns reflect the true vote of the people. No evidence has been submitted to us to the contrary.”). Although the candidates disagreed about which returns should be accepted, we explained, “[t]he objection to acceptance of the amended returns is based on technical irregularities in arriving at the result rather than on a claim that the results are not right.” Id. at 272-73, 119 N.W.2d at 11.
In this case, local election officials have determined that some absentee ballot return envelopes were rejected in error, either for a reason other than one of the four reasons specified in Minn.Stat. § 203B.12 or because election officials were mistaken in concluding that one of the four specified reasons applied. Nei[233] ther candidate has alleged, nor is there any evidence before us to suggest, that those errors were anything but innocent. But the candidates apparently do disagree whether all the identified rejections were in fact erroneous. Unlike the circumstances in Andersen, there is no agreement that counting all of the absentee ballots that the local election officials have designated as wrongly rejected would reflect the “true vote of the people.” But where the candidates can agree with local election officials that rejection of an absentee ballot envelope was in error, correcting that error and counting the vote would, consistent with Andersen, provide “the correct tally of the vote.”
Accordingly, we conclude that in the specific and limited circumstances where all parties — the two candidates and the relevant local election officials — agree that an absentee ballot return envelope was erroneously rejected, section 204B.44 authorizes us to allow correction of that error to reflect “the true vote of the people,” and the correction need not await an election contest under chapter 209.14 As explained above, although an election contest under chapter 209 is designed to address, among other things, “an irregularity in the conduct of an election or canvass of votes,” it is an evidentiary hearing specifically designed for those irregularities as to which there are disputed issues of fact. Minn. Stat. § 209.02, subd. 1. Where all parties agree that an absentee ballot return envelope was erroneously rejected, there is no disputed issue of fact and no need for the factfinding process that an election contest under chapter 209 provides. Instead, any absentee ballot return envelope that local election officials and the candidates agree was rejected in error may be opened and its vote for United States Senator added to the total, subject to challenge as to voter intent by either candidate.
We therefore grant in part and deny in part the petition for relief under Minn. Stat. § 204B.44, as stated in our order of December 18, 2008, as modified by our order of December 24, 2008.
MAGNUSON, C.J., and ANDERSON, G. BARRY, J., took no part in the consideration or decision of this case.
DISSENT