Recount Update: The Duplicate Ballot Issue

The recount in the Coleman-Franken Senate race is drawing to a close, and the result depends on the outcome of the motion that the Coleman team argued before the Minnesota Supreme Court (minus two of its members who are serving on the Canvassing Board) this afternoon. The motion relates to duplicate ballots that have been counted, giving Franken an extra 130 or so votes. If Coleman prevails on the duplicate ballot issue, he wins the recount; if not, Franken will win by somewhere between 25 and 50 votes.

I delved deeper into the duplicate ballot issue today, and concluded that Coleman’s case is a strong one. The issue arises out of situations where the original ballot won’t go through the voting machine. Two judges are supposed to mark that ballot “Original No. 1,” and prepare a duplicate ballot that will go through the machine. The duplicate is supposed to be marked “Duplicate No. 1.” The process continues for all such ballots. All of the originals are put into an envelope, and the duplicates are counted by the machine and become part of the tally, based on the machine’s tape, that is reported to the Secretary of State’s office.

That’s where it ends, unless there is a recount. In the event of a recount, the ballots in the machine are sorted into piles for the various candidates, and another pile for the duplicate ballots. The duplicate ballots aren’t counted; rather, the election judges look at the originals that are retrieved from their envelope. This makes sense, obviously, since if a ballot is to be challenged, it is the original.

The problem arises when election judges don’t understand or follow the process, and the duplicate and original ballots don’t match up. Most commonly, what has happened in that situation is that the duplicate ballot was created and run through the machine, but the judges forgot to write “Duplicate No. _” on it. In that situation, if the election judges count every ballot in the machine that is not marked “Duplicate” and also count the “Original” ballots in the envelope, some votes will be counted twice.

In some situations, it may be impossible to be sure exactly why the originals and duplicates don’t match up. But the Coleman campaign has identified 25 precincts (I believe) where there was such a mismatch, and where, as the recount procedure has been carried out so far, there were more ballots counted than the number of people who voted on election day. In those cases, there is no doubt about the fact that some votes are being counted twice. The solution is to use the count from the machine tape, rather than the hand count that includes both the originals and some duplicates. If this is done, Coleman will net approximately 130 votes.

Several members of the Canvassing Board have publicly stated that their recount totals probably include some ballots that were counted twice. Further, Coleman’s theory closely parallels the case of the 130 or so missing ballots from a Minneapolis precinct. When the ballots couldn’t be found, local officials argued that the ballots must have been cast, because the totals as reported to the Secretary of State were consistent with the precinct’s records as to the number of people who voted on November 4. Thus, they concluded that the hand recount should be disregarded and the ballots as recorded on the machine tape should be counted.

That argument was derided by some: if we trust the tape more than the hand recount, then why are we doing a recount at all? Nevertheless, the Democrats’ theory was accepted and the missing ballots were accepted on faith and counted. On the same principle, we can tell from the roster of those who voted on November 4 that in some precincts there are more ballots than voters, which means that some ballots are being counted twice. When that differential corresponds to the difference between the “original” and “duplicate” ballots, as in the 25 cases identified by the Coleman campaign, it is obvious what happened, and the votes should only be counted once.

This is a powerful argument which the Franken campaign hasn’t seriously tried to rebut. It seems highly probable that at some stage it will be accepted. The main question for the Supreme Court may be whether these errors should be corrected now (as was done with the missing Minneapolis ballots, at Franken’s request) or be left to the litigation that will inevitably ensue.

Once the recount is finished and the duplicate ballot question resolved, we will have a winner of the recount. But the contest will still not be over, as both campaigns hold out hope that if all of the absentee ballots that were disqualified on November 4 are reviewed, some will be found to have been rejected in error, and those additional ballots, added to the candidates’ totals, might change the result. So Minnesota’s Senate race will not be resolved any time soon.

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