After testimony from five witnesses Thursday, both parties in the Senate District 27 appeal think they will be able to wrap up their arguments today.

Anoka County District Judge Joseph Quinn heard testimony from attorney Fritz Knaak on behalf of Tom Purcell, who filed the appeal, and Brian Rice, Dan Sparks' attorney.

Purcell, of Austin, is challenging the state Canvassing Board decision to certify Democrat Dan Sparks as senator in District 27. After ruling on 17 destroyed ballots and 32 contested ballots, the board certified Sparks by 11 votes Dec. 10 over incumbent Grace Schwab.

Sparks had lost eight votes in the recount of the 2nd Ward, 1st Precinct, where 17 ballots were destroyed. Three of five board members decided to count those eight votes.

Purcell has said he does not think the board handled the 17 destroyed ballots and 32 contested ballots correctly and that their decisions were a disservice to voters.

At the hearing Thursday, both Knaak and Rice told the judge that they agreed the recount itself was done correctly and that another recount need not be held.

Instead, at issue were 17 ballots destroyed in an election judge's fireplace and some of the 32 contested ballots.

But most of the witnesses' testimony Thursday focused on what happened with 17 destroyed absentee ballots on Nov. 5 and the early morning hours of Nov. 6

The third witness called was Jeannette Dennison, an election judge in the 2nd Ward, 1st Precinct, but she was not present.

After a 15-minute recess, Rice said a Mower County deputy had tried to subpoena Dennison Tuesday, but that she could not be found. Later, Rice said she was at home, but did not come to the door.

They decided to try to subpoena her again and proceed with other testimony.

Another election judge in the 2nd Ward, 1st Precinct, Sherri Forman, testified. She said she, Dennison and deputy city clerk Cheryl Hayes were recounting absentee ballots in the early morning of Nov. 6 because the vote totals were not working out in the U.S. Senate race.

She said the Wellstone ballots were in a pile on the counter in the office they were working in, but that she didn't deal with them.

Forman said Dennison asked for a plastic bag and took those ballots out of city hall in that bag. Forman said Dennison put the bag in her trunk and gave Forman a ride home.

While in the car Dennison told Forman, "I know what I'm doing with these. They're going right in my fireplace."

Both Rice and Knaak asked if Forman, who has been an election judge for nine years, had thought this was odd. Forman said she thought it was a little strange, but not enough to say anything.

"It was a not a big, bright red light flashing," Forman said. "I thought this is what's supposed to be done."

When Hayes was called to the stand, she said Dennison had mentioned she had a fireplace after she had given her a plastic bag. Hayes said she did not know what the bag was for or why she had mentioned the fireplace.

When Dennison and Forman came back to city hall from the auditor's office and said the numbers did not match up in the U.S. Senate race, Hayes said they needed to look at the absentee ballots. She said some of the absentee ballots were not counted.

While they were recounting the absentee ballots, she was coming up with too many votes. She said she realized later she was counting Wellstone ballots for Wellstone and as undervotes. She asked Austin City Clerk Lucy Johnson what to do.

Johnson told her "you gotta get rid of the Wellstone votes," Hayes said. Hayes then went to her office and subtracted the 17 votes for Wellstone and wrote out the results.

She said she thought all of the ballots were boxed up again.

Johnson was called to the stand next and said she said she had told Hayes to get rid of the Wellstone votes, emphasizing that she did not say ballots.

Rice asked her if she thought the judges could have overhead her tell Hayes that and Johnson said it was possible.

On Nov. 21, Johnson said she received a call from Bert Black, legal analyst for the Secretary of State's office. He told her that during the recount, they had discovered 17 ballots were missing in the 2nd Ward, 1st Precinct. Johnson thought that maybe some ballots were in the wrong precinct and that they would be found later, but they were not.

Johnson said she called Dennison that day and Dennison reassured her that all ballots had been put back in the boxes.

On the morning of Nov. 22, Johnson called Forman and Forman told her that Dennison said she had planned to burn ballots she had taken out of city hall.

"I said, 'Oh no,'" Johnson said.

Johnson tried calling Dennison again, but got no answer. She called Dennison's husband at work and he said that his wife had brought some ballots home and had said Johnson had told her to burn them.

Johnson said she told Dennison's husband she did not tell Dennison to burn the ballots.

Later that day, Johnson and Hayes met with Black, Rice and Knaak in Albert Lea, where the recount was underway in Freeborn County.

When Johnson returned home, she had a message from Dennison. Johnson called her back.

"Her first question to me was, 'Am I going to jail?'" Johnson said.

Johnson said she told her she did not know, but to call Black.

"She was very worried about jail time," Johnson said.

Both attorneys said afterward that they would like Dennison to testify to make the account of that night more complete, but that it wasn't necessary.

Knaak said the point of going through what happened Nov. 5 and 6 was to "get to bottom of what happened." He said he wants to know Dennison's motive in burning the ballots and whether it had something to do with her party affiliation as a Democrat.

"I'm genuinely interested in what she had to say," Knaak said.

Rice said he does not think her party affiliation has anything to do with her decision. He said it doesn't make sense that a Democrat would get rid of votes for a Democrat.

He pointed out, however, that the state DFL party had asked Dennison in a survey last summer who she had voted for in the last state senate race and she had said Schwab.

The hearing continues today.

Rice said the judge will probably give his opinion by Monday and that opinion will be used by the state senate. After the judge's decision, however, the parties have 15 days to appeal to the state Supreme Court, Rice said.

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