Republican Sen. Grace Schwab is trailing Democrat Dan Sparks by three votes at 15,073 after the Senate District 27 recount was completed Friday near midnight in Freeborn County.

But with 17 missing ballots from an Austin precinct and 32 contested ballots, the process is far from over.

Seventeen ballots, which were missing from the 1st Precinct in the 2nd Ward, appear to have been inadvertently destroyed, according to a statement issued Friday by Austin City Clerk Lucy Johnson.

"While it appears the destruction of these ballots resulted from confusion arising out of votes made in the United States Senate race, further investigation will be necessary to determine the exact series of events which led to the destruction of these 17 ballots," the statement read.

Bert Black, legal analyst for the Secretary of State's office, said he has spoken with Johnson and the deputy city clerk. He said he needs to interview more people before writing up his final report about the recount.

Brian Rice, Sparks' attorney, and Schwab's attorney Frederic Knaak also spoke with Johnson on Friday.

On election night Johnson told an election judge to "get rid them" in reference to 17 absentee ballots with votes for the late Sen. Paul Wellstone, said Sparks' attorney Brian Rice.

She meant that the judge should disregard the votes when counting votes in the U.S. Senate race, Rice said.

The judge took that comment to mean get rid of the entire ballots, Rice said. According to Rice, the judge asked Deputy City Clerk Cheryl Hays for a bag but did not say why she needed it. The judge then put the ballots in the bag and left city hall with them that night, Rice said.

When ballots were recounted Thursday in Mower County, 17 ballots turned up missing in the 1st Precinct of the 2nd Ward. Those 17 ballots, however, were recorded on the optical scan printout Nov. 5, said Woody Vereide, Mower County auditor.

In the recount of that precinct, Sparks lost eight votes, Schwab gained 13 and other candidates in the race gained seven votes. Sparks and Schwab gained votes in all other Austin precincts.

Kent Kaiser, a spokesman for Secretary of State Mary Kiffmeyer, said if the race remains closer than 17 votes it will pose a serious dilemma for the state Canvassing Board.

"They can decide not to certify the election. There would have to be a special election," Kaiser said. "They can decide to certify and there very well could be a court challenge from the loser."

Parties or candidates have seven days to contest any decision. Vereide said it would be likely a political party would challenge the results. The case would then be brought before the district court.

Black said it is also possible that the legislature could decide which senator would represent District 27. Currently, the DFL party has control of the state senate.

The city clerk's office has said it will cooperate in the investigation of the ballots. The information about the inadvertent destruction of the ballots has been forwarded to the Secretary of State's office and the attorneys for Sparks and Schwab, according to the city clerk's statement.

Rice said the missing ballots are a "huge disservice to the electoral process."

"This is such a colossal mistake. This is beyond everything (election judges) are taught to do," Rice said, adding that at the end of an election night judges are taught to keep everything, including scraps of paper from the floor.

He said the eight votes Sparks lost in the recount should be counted and said it is possible even more people voted for Sparks because those ballots contained Wellstone votes.

"Had (the judge) not walked out of the room with those ballots, there is no doubt in my mind Dan would have won the election," Rice said.

Knaak said a candidate losing votes in a recount is rare, but that it does happen. Schwab lost some votes after the recount in one of the precincts in Freeborn County, he said.

Knaak also said there is no way to know who was voted for on those absentee ballots because they are not available. He also said if those voters picked Wellstone it does not mean they also voted for Sparks.

Both attorneys said the 32 contested ballots may not be able to determine the race's results.

"Hopefully this will be resolved with challenged ballots, but right now I wouldn't bet on it," Knaak said.

Of the 32 ballots, 12 of them were all votes cast in Albert Lea township for the District 27 senate race. Only 10 of those 12 voters signed the roster on election day said Black and he wanted to declare the precinct invalid. Both attorneys contested this because each candidate received six votes.

Schwab said Sparks' attorney objected to more votes than her attorney, so she remains positive she could win the race.

"Unfortunately we'll just have to keep waiting," Schwab said.

Schwab said the missing 17 ballots cannot be counted because they have been destroyed and there is no indication who the votes were for.

Sparks said it's "unfortunate" that 17 ballots were destroyed, especially when he lost some votes in that precinct's recount.

"The majority of the votes would have been mine, but I don't want to blame any of the volunteers," Sparks said of the election judges.

Sparks said the process has been stressful for him and his staff, but said the recounting process has been meticulous.

"I think we're going to come up with a true winner pretty soon here," he said.

Schwab said her goal is to continue representing District 27.

If Sparks ultimately wins, Democrats will hold 35 seats in the Senate, compared to 31 Republicans and an Independence Party senator who is a former Republican. If Schwab retains her seat, DFLers will have just a two-seat edge. Republicans will control both the House and the governor's office when the Legislature reconvenes in January.

Nov. 5 results showed Sparks beating Schwab by 33 votes. State statutes say if the difference is less than 100, the ballots must be recounted.

-- The Associated Press contributed to this report.

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