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Minnesota Senate Recount, Update XIV

Minnesota’s Canvassing Board met today and completed its review of ballots to which the campaigns had withdrawn challenges. The net effect (an additional two votes for Coleman and six for Franken) was to push Franken’s lead to 50 votes.

The next step is trying to deal with the “fifth pile” ballots that we wrote about here and elsewhere. On December 18, the Minnesota Supreme Court ordered the state’s county election officials to “identify for the candidates’ review those previously rejected absentee ballot envelopes that were not rejected on any of the four bases stated in [Minnesota statutes].” That process is now apparently complete, and the counties have identified 1,346 such ballots. They are conventionally referred to as the “wrongly rejected” absentee ballots.

The Supreme Court further ordered the campaigns to try to agree on which of these ballots were, indeed, rejected in error. As to all ballots where such agreement is reached by the county and both campaigns, the votes will be tallied as part of the recount process. As to any ballots where a dispute remains, the dispute will be resolved in the election contest that presumably will follow the recount.

Not surprisingly, the Coleman and Franken campaigns have had difficulty agreeing on which ballots clearly satisfy the statutory standards and should be counted. Further, the Coleman campaign has identified some additional ballots that it thinks should count. This morning the Coleman campaign put out this statement:

Over the weekend Franken campaign “let go of the rope” in working with us to reach an agreement on wrongly rejected absentee ballots. The Franken campaign’s “take it or leave it” approach left no room for negotiation. Their actions, which resulted in no credible proposal from their campaign, or even a list that could be sent to local election officials, has ensured that there is no agreement that governs which rejected absentee ballots should be reviewed for counting by the Canvassing Board.

Meanwhile, the Deputy Secretary of State inserted himself in this process and blocked our campaign from sending our list to local election officials yesterday. He then claimed that the reason that counties had no list was because neither campaign had complied with a deadline for getting lists to those counties.

Our campaign proposed a good faith agreement that would ensure that more than 1,400 rejected absentee ballots would be reviewed for counting by the Canvassing Board, but, as a result of the Franken campaign’s refusal to put forward a specific proposal and a list — and the Deputy Secretary of State’s intervention in this process — there is no agreement and until there is an agreement no sorting of rejected absentee ballots can take place.

It’s important to understand that the reason we wanted more ballots included, on average less than ten per county, is that some counties were not consistent in the application of rejected absentee ballots. Some counties continue to not operate on a uniform standard in how they rejected absentee ballots. This lack of uniformity compelled us to ensure that additional rejected wrongly rejected absentee ballots be included in review for possible counting by the canvassing board.

The issue the Coleman campaign is trying to address is an obvious one: with the counties having been directed to identify their own election-day “errors,” there is no assurance that they will apply uniform standards. Indeed, it is virtually certain that they will not. The Coleman campaign is trying to add ballots to the mix to achieve uniformity among the counties.

Given all of that, where does the election stand? Franken will almost certainly win the recount. It is possible, but statistically unlikely, that whatever absentee ballots the campaigns eventually agree to will give Coleman the lead. At this point, neither campaign knows which side will gain when those absentee ballots are counted.

We will then, in all probability, move on to the contest phase. Until recently, everyone’s assumption (including the Franken campaign’s) was that Coleman would win the recount, and Franken would be in the position of having to overturn that result through an election contest in the courts. Now, it seems highly probable that that burden will fall on Coleman instead. This is unfortunate, obviously.

What are Coleman’s prospects? Actually, they are pretty good–depending, of course, on what we find when the “wrongly” rejected absentee ballots are opened. Coleman has a strong argument that around 130 Franken votes were counted twice. (This is the “original” vs. “duplicate” issue that we wrote about here and elsewhere.) If the absentee ballots turn out to be a wash, or if Franken gains only a handful of votes, Coleman is likely to win in the end. If the opening of the absentee ballots pushes Franken’s lead past 130, then it is hard to see how Coleman can catch up unless the election contest finds significant errors in the handling of those ballots.

One way to look at the situation is as follows: most likely, Coleman is “ahead” currently by around 80 votes (assuming that he eventually wins the duplicate vote issue). So, unless Franken gains a net of 80 votes or more on the absentee ballots, Coleman is likely to win the election contest.

That’s how it looks to me currently, anyway.

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