The Franken campaign and its allies such as Minnesota Secretary of State Mark Ritchie and Hennepin County Attorney Mike Freeman are now focusing on rejected absentee ballots. In today’s Star Tribune Kevin Duchschere shows that Ritchie is improvising in advance of the state Canvassing Board meeting today which will consider the treatment of rejected absentee ballots. Ritchie solicited the advice of Freeman et al. for the handling of rejected absentee ballots:
Hennepin County Attorney Mike Freeman proposed a process for reconsidering rejected absentee ballots that would partly skirt the Canvassing Board: Have local elections officials review such ballots and identify those possibly improperly rejected.
Freeman, a DFLer who backed Franken, said that he and Anoka County Attorney Bob Johnson worked on the plan after Secretary of State Mark Ritchie asked them and other county attorneys for ideas to improve the process.
In a statement, the Coleman campaign said: “This is a back-door effort by both the Franken campaign, and Mr. Freeman, to try to gain influence on the eve of the discussions by the Canvassing Board, and there needs to be further explanation for why the Hennepin County Attorney is using his office in such an overtly partisan manner.”
But Freeman disagreed with that assessment. “This is trying to count all the ballots. How the hell is that partisan?” he said.
The vast majority of rejected absentee ballots appear not to raise such issues. Duchschere comments:
The Star Tribune has analyzed the reasons absentee ballots were rejected in 28 counties, and only two counties — Ramsey and Itasca — specifically cite election officials’ error. In Ramsey County, it appeared that 53 rejections were tied to administrative error.
Elsewhere the Wall Street Journal reports that the Franken campaign has purportedly obtained information from 66 Minnesota counties on 6,432 rejected absentee ballots. The Franken campaign concedes that most of those ballots were properly rejected, but has forwarded an affidavit containing four examples of improperly rejected ballots to the Canvassing Board. (Duchschere also reports on the mysterious appearance and disappearance of ballots during the recount in Becker County and in Crystal.)
The problem with adding absentee ballots is state law. According to an advisory opinion issued last week by the office of Democratic state Attorney General Lori Swanson, “Only the ballots cast in the election and the summary statements certified by the election judges may be considered in the recount process.” A recount manual prepared this year by the office of Secretary of State Mark Ritchie, also a Democrat, makes clear that the canvassing board only supervises “an administrative recount” that is “not to determine if absentee ballots were properly accepted.”
But Mr. Franken’s attorneys are now arguing that Minnesota law also requires that each county’s election report include “the complete voting activity within that county.” They are also invoking the Equal Protection arguments cited by the Supreme Court in Bush vs. Gore, as well as rulings from Washington State’s disputed 2004 governor’s race — that contest was decided for Democrat Christine Gregoire by 133 votes after an initial count and two subsequent recounts.
Intent on harvesting absentee ballots, the Franken campaign has presented affidavits from four voters who claim their ballots were improperly rejected. It hopes to find more, now that a Ramsey County judge has agreed to a Franken demand that it have access to data from that county on whose absentee ballots had been rejected. After initially saying rejected absentee ballots shouldn’t be part of the recount, the secretary of state’s office now says the information should be made public.
If the absentee names are made public, a mad scramble will ensue to contact those voters and get them to demand their ballots be counted. That’s just what happened in the 2004 governor’s race in Washington State after King County Judge Dean Lum allowed local Democrats access to the list of provisional voters that hadn’t been counted because either there was no signature or no match between the signature and the voter registration on file with officials.
It should be noted that the Attorney General’s opinion to which Fund refers was actually provided by Assistant Attorney General Ken Raschke, who specializes in Minnesota election law. As Politics in Minnesota observed last week, you don’t mess around with Ken.
Fund then turns to the ominous Washington state connection to the Minnesota recount courtesy of the Franken campaign:
Democrats with experience from the Washington recount are now advising Mr. Franken. Paul Berendt, a former chair of the Washington Democratic Party, was in Minneapolis this month. “What I bring to this effort,” he told Oregon Public Radio from the Minneapolis recount office, “is that I understand every single step of this recount process and the things that you need to look for in order to make sure that every vote is counted.”
At the conclusion of his column Fund cites some troubling history:
If the strategy of adding previously rejected ballots to the Minnesota Senate recount is successful, a final outcome could be months away. In 1975, the U.S. Senate refused to accept New Hampshire’s certification that Republican Louis Wyman had won by two votes. The seat was vacant for seven months, with the Senate debate spanning 100 hours and six unsuccessful attempts to break a filibuster and vote on who should be seated. The impasse ended only when a special election was agreed to, which was won by Democrat John Durkin.
I trust we won’t be holding a do-over of this election, but the Washington connection cited by Fund is suggestive of a nightmare scenario all by itself.
To comment on this post, go here.