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An election contest preview

The election contest brought by Senator Coleman to determine the winner of his race against Al Franken begins this afternoon in St. Paul before a panel of three judges. Star Tribune reporter Kevin Duchschere profiles the three judges here. Former Star Tribune reporter Jay Weiner previews the election contest here. Chris Cillizza and Paul Kane preview it here.

After the canvas tabulating the election result, Senator Coleman had apparently defeated Franken by 215 votes. The closeness of the margin required a recount under state law. Following the recount before the Canvassing Board, Senator Coleman lost his lead and now trails Franken by 225 votes.

How does Senator Coleman hope to recapture the lead in the election contest? He raises two principal issues. The first has to do with absentee ballots that were rejected by local officials on election night. More than 11,000 rejected absentee ballots remain uncounted. Senator Coleman seeks the inclusion of some of them as having been improperly rejected further seeks the treatment of all absentee ballots under a uniform standard. The Franken campaign incessantly demanded the inclusion of improperly rejected absentee ballots following the canvas in November.

The Coleman campaign has just released a video (above) with a medley of bygone calls by Franken campaign officials and Senate Majority Leader Harry Reid to count these rejected absentee ballots. The Franken campaign abandoned the call as soon as it found friendly local officials to identify approximately 1,200 improperly rejected absentee ballots in heavily Democratic counties. More than 900 were ultimately included in the recount and they ballooned Franken’s lead from 49 votes to his current 225-vote margin.

Senator Coleman had no such luck with local officials in Republican counties. Senator Coleman identified more than 600 rejected absentee ballots that he claims (over the determination of local officials) were improperly rejected. He calls for their inclusion. He has also unsuccessfully called for the review of thousands of other rejected absentee ballots under the same standard applicalbe to previously rejected absentee ballots that were included in the recount.

On Friday Senator Coleman separately filed a “reverse class action” lawsuit regarding the 11,000 rejected absentee ballots. The Star Tribune reported developments through Fridyay here.

The rejected absentee ballots are critical to Senator Coleman’s case for the same reason they were critical to Franken following the canvas. That’s where the necessary votes are.

Whether or not their inclusion would propel Senator Coleman to victory is not clear to me. Franken apparently thinks they would. He has certainly lost any interest in counting every ballot. Rather, he wants to skip the contest entirely and be seated in the Senate. Franken accordingly brought a frivolous motion for Senator Coleman’s contest of the election to be dismissed. Last week the election contest panel predictably denied Franken’s motion.

The election contest will also address Senator Coleman’s claim regarding the double counting of damaged ballots for which duplicates were made. Senator Coleman has asserted that at least 130 damaged ballots, tilting heavily to Franken, were double counted in certain precincts that reflected more votes than voters. He will have to persuade the election contest panel that the explanation for the discrepancy between votes and voters in these precincts is more likely than not attributable to the double counting of damaged ballots.

Finally, Senator Coleman asserts that the Canvassing Board improperly included missing votes in one Hennepin County precinct in the recount. Under Minnesota law, these votes should not have been included in the recount, but they would in any event properly be included in the contest. The evidence supporing the existence of the missing ballots is strong. Franken will win this issue.

The parties’ pleadings and court orders in the election litigation are accessible online here. The parties’ filings in the Minnesota Supreme Court and Supreme Court court orders are accessible online here.

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