Recount update: Election contest “virtually guaranteed”

The Minnesota Supreme Court has entered an order per Justice Page denying Senator Coleman’s petition for relief on the issue of double counting in the recount. (John Hinderaker described the double counting issue here.) The Coleman campaign believes it has identified approximately 130 double-counted absentee ballots mostly in heavily Democratic Minneapolis precincts. Rather than provide some resolution to the issue during the recount, the Minnesota Supreme Court expressly reserved the issue to an election contest of the recount.

Under applicable state law set forth in chapter 209 of the Minnesota statutes, an election contest of the recount is a judicial proceeding that occurs before a panel of three judges assigned by the Chief Justice of the Minnesota Supreme Court. According to the Star Tribune report of the decision, the Minnesota Supreme Court order provides that the issue of double counting would be more appropriately resolved in a judicial forum on the basis of relevant evidence rather than by local canvassing boards. An election contest gives rise to the judicial forum established under state law.

The Coleman campaign has issued a statement, which alludes in part to the timetable set by the court in another order today for the disposition of some 1,600 absentee ballots:

The decision by the Minnesota Supreme Court today virtually guarantees two things in this recount. One: it ensures that there will be an election contest because Minnesotans simply will not support an election as close as this being decided by some votes being counted twice. Two: this ensures that no certificate of election will be issued due to an election contest inevitably being filed, leaving Minnesota without two sitting United States Senators on January 6th.

As a result of the Supreme Court ruling on the issue of double counted ballots, the ballots in issue will be included in the totals rendered by the Board of Canvassers in early January. If the margin between the candidates is fewer than 130 votes, or if other substantial issues remain as a result of the treatment of the 1,600 absentee ballots, a contest is guaranteed. I take the Coleman campaign statement’s slight hesitation on this point only to mean that so long as the margin is not prohibitive, a judicial contest of the recount is now inevitable.

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