The election judges in Austin's 1st Precinct in the 2nd Ward have been granted immunity in the inadvertent destruction of 17 ballots discovered missing in the Senate District 27 recount, said Leslie Sandberg, press secretary for Minnesota Attorney General Mike Hatch.

"We don't see any criminal activity," Sandberg said. "The destruction of the ballots was inadvertent, but unfortunate."

The recount was completed Friday in Freeborn County. Democrat Dan Sparks is leading Republican Sen. Grace Schwab by three votes, but 32 votes have been contested. The State Canvassing Board will need to decide who those votes were for and consider the 17 ballots that were destroyed.

The board had planned to meet Tuesday, but the meeting has been rescheduled for 2:30 p.m. Dec. 10, said Kent Kaiser, spokesman for Secretary of State Mary Kiffmeyer. The delay was caused by a senate race recount in the Brainerd area.

Austin City Clerk Lucy Johnson did not identify the election judges who worked Nov. 5 in the 1st Precinct of the 2nd Ward.

She said their names are public, but said she was "not at liberty" to give out their names. She said the Secretary of State's Office has the names from the information she provided them.

Bert Black, legal analyst for the Secretary of State's Office, said he is writing a report about the recount, which will include information about the 17 missing ballots. That report will be presented to the canvassing board Dec. 10, but until then Black declined to discuss the contents of the report.

Sandberg said the election judges have been cooperating with authorities in the investigation.

On Nov. 5 Johnson told one of the election judges to "get rid of them" meaning for the judge to temporarily disregard the votes for Sen. Paul Wellstone on 17 absentee ballots, said Brian Rice, Sparks' attorney.

The judge took those 17 ballots out of city hall that night, Rice said.

"I really don't understand what happened or how that intent came across," Johnson said of the destroyed ballots.

Rice said because the 17 ballots contained Wellstone votes, it is likely those voters also chose Sparks. In the recount, Sparks lost eight votes.

Schwab's attorney, Frederic Knaak, said while losing votes in a recount is rare, it happens. He also said there is no way of knowing who the voters chose because the ballots have been destroyed. Just because they voted for Wellstone does not mean they voted for Sparks, he said.

Schwab and Sparks gained votes in all other Austin precincts.

The state canvassing board can choose not the certify the votes in the recount and instead a special election could be held, Kaiser said. If the board does decide who won the election, either side has seven days to contest the decision, Kaiser said.

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