OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 27:2 2012] effort so that the interests of 11 ,000 aggrieved voters in the state would be represented in the litigation. 148 Despite the effort of the campaigns to incorporate the public interest into their narratives, it remained a partisan effort to do so; the problem of representation of the public's interest therefore persists. The problem of the public interest brings to light one of the most difficult issues in mediating public disputes: should the parties be able to define the contours of agreement if such agreement fails to take into account the public interest? An issue raised on Secretary Ritchie's conference call is illustrative of this point. C. Party Agreement and the Problem ofDuplicate Ballots One of the biggest sticking points on the call concerned duplicates. When absentee ballots arrived tom or otherwise mutilated through the postal service, standard election administration practice guided that election officials would make a new ballot that could be fed into the tabulating machines. Original ballots were marked Original and set aside; duplicated ballots were marked Duplicate and also saved. The original Recount Plan stipulated that election officers administering the recount should count the duplicate ballots. But the redlined document took issue with this plan, advocating instead that original ballots be used in the count (on the theory df (order making the 64-person suit part of the pending litigation between AI Franken and Norm Coleman in Ramsey County). 14 8 Weiner, supra note 62, at 173. Order Denying Motion for Certification of a Class Peterson v. Ritchie Minn. Dist. Ct., Feb. 23, 2009, No. A09-65, available at http://moritzlaw.osu.edu/electionlaw/litigation!documents/Orderdenyingcertificationofacl ass.pdf(denying Coleman's campaign class certification to 11,000 absentee voters). The following are the grounds on which the court denied the class action certification: (a.) MINN. STAT. § 204B.44, which governs the process of seeking a remedy to an error, omission, or wrongful act in the election process, refers to "any individual;" it does not contemplate a class-action suit; (b.) MINN. STAT. § 204B.44 gives Minnesota Supreme Court original jurisdiction over such cases. In this case, Minnesota Rules of Civil Procedure would not govern (as would apply to a district court), but rather Minnesota Rules of Civil Appellate Procedure would apply to the Supreme Court. There is no mechanism for class certification under Minn. R. of Civ. App. Pro.; (c.) If Rule 23 of Minn. R. of Civ. Pro. did apply, Coleman's petition would nevertheless not qualify for class certification on the basis that it lacked commonality, typicality, and adequacy of representation-all requirements under Rule 23. /d. at 4, 6-7. First, the court found that Coleman's petition lacked commonality in that although members of the class shared a "common question of law," there were "unique questions of fact." !d. at 6. In addition, the class lacked typicality and adequacy of representation in that "Coleman cannot represent the class of absentee voters ... because he is not a member of that class." !d. at 7. 362 HeinOnline -- 27 Ohio St. J. on Disp. Resol. 362 2012