Losing Duluth legislative candidates unsuccessfully challenge election results

State Judge Eric Hylden tossed out a lawsuit Monday contesting the results of the Nov. 3, 2020 general election.

Three unsuccessful Republican nominees — Senate District 7 candidate Donna Bergstrom, House District 7A candidate Tom Sullivan and House District 7B candidate Art Johnston — filed the suit, alleging "irregularities in the conduct" of the general election and "in the canvass of absentee ballot votes."

Bergstrom pointed to the results of a discretionary recount of votes cast in Duluth's 8th Precinct conducted at her request.

"At 8 p.m., all the Republicans on the ticket in that precinct won. We were declared the winners at 8 p.m. because of the in-person voting," she said.

"Declared by whom?" Hylden asked

Bergstrom said the head election judge disclosed those poll results. "Then when the absentee ballots got added, it threw the numbers off quite significantly," she said.

"So, we believe the absentee ballots are really where the problem is in this election. So, that would change the outcome if we threw out all the absentee ballots in Precinct 8. My numbers would change. And if we could look at all 32 precincts, and throw out all the absentee ballots or just made sure that all the ones that were accepted and rejected appropriately, the numbers could change significantly," said Bergstrom, questioning whether the board assigned to objectively review the authenticity of those absentee ballots was properly staffed by equal numbers of Democrats and Republicans.

Johnston chimed in, saying, "What I thought was peculiar is that with the direct ballots Ms. Bergstrom clearly won that by a high margin. These were all ballots that were done for the normal election. Yet, when the mail-in ballots came, suddenly it was totally different."

Hylden pressed Johnston on the point.

"What you're saying is that the people who voted in person and the people who voted absentee may have been different. But we all knew there were going to be absentee ballots, and in a pandemic year that we were bound to have a lot more absentee ballots than we ever had before," Hylden said, noting that the in-person voters may have held conflicting political views to those of absentee voters.

Assistant St. Louis County Attorney Nora Sandstad defended the election results, saying: "We ran an excellent election under very challenging circumstances. And we don't have any preference as to which candidate is the winner in any of these races. Our job is to run a fair and open election and get as many people to participate in voting as possible."

"It's alarming to hear requests to have every single absentee ballot rejected that has been cast in these races. I don't want to go so far as calling it ridiculous, but that's essentially where we're at," Sandstad said.

Bergstrom also pointed out that the city's and county's ballot-processing machines made use of Digital Scanner 200 technology, "And we have seen nationwide that some of those computers were hacked or algorithms were set up in them," she said.

Hylden asked Bergstrom if she had any evidence that there had been technological problems with the machines that processed votes in Duluth.

"Well, your Honor, we don't have proof that there wasn't problems with the algorithms. Equally, we don't know. We just don't know," she said.

Hylden described that as a troubling situation because "as plaintiffs, the burden is kind of on you to prove your claims, as opposed to the other side proving the opposite."

Bergstrom received 31.5% of the vote, compared to her opponent Jen McEwen's 68.3%. Sullivan received support from 29.4% of Duluth voters who cast ballots, as compared with his incumbent opponent Jennifer Schultz. And Johnston finished the election with 31.7% of the Duluth vote, as compared with his incumbent opponent Liz Olson's 68.2%.

David Zoll, an attorney representing Schultz and McEwen, suggested there weren't enough votes even in question to overcome the margin of victory.

In dismissing the case, Hylden said, "The court does find that there isn't an allegation made that any of the issues raised by the contestants would have changed the results," calling that legally "fatal" to the challenge.