Overtime in the Minnesota Senate election

The media coverage of the events related to Minnesota’s Senate election and subsequent recount has been so poor that it is difficult to determine what happened. The erosion of Senator Coleman’s approximately 700 vote lead over Al Franken on November 5 to the emergence of Al Franken with a 225 vote lead over Senator Coleman on January 5 has given rise to implications that Democrats have stolen the election for Franken.

The Wall Street Journal editorial “Funny business in Minnesota” is representative of this strain of commentary on the canvas and recount. This commentary comes with the underlying theme that Senator Coleman is a victim of Democratic scheming.

From the day following the election, the Franken campaign undertstood it needed to come up with additional votes to prevail. Thus the initial “count every vote” mantra that accompanied its litigation regarding rejected absentee ballots. The mantra ceased at the moment Franken took the lead, even though other apparently improperly rejected absentee ballots identified by the Coleman campaign have yet to be counted, and other Franken-leaning absentee ballots appear to have been counted twice.

It is particularly difficult to determine what happened in the recount as it proceeded at locations around the state. There has not to my knowledge been any public airing of grievances. The Board of Canvassers that was convened to preside over the recount and rule on challenged ballots conducted itself honorably under difficult circumstances.

In addition to board chairman Mark Ritchie, the Man from ACORN who is Minnesota’s Secretary of State, four judges served on the board. Minnesota Supreme Court Chief Justice Eric Magnuson, Associate Justice Barry Anderson, and Ramsey County District Court Judges Ed Cleary and Kathleen Gearin filled it out. I have known Chief Justice Magnuson professionally more than 25 years. Justice Anderson was my law school classmate and is a friend. In my view, they are two of the best judges serving in the Minnesota courts. Period.

There was no noticeable partisan division among the board. Minnesotans are justifiably proud of the transparency and fairness of their work. I reject any imputation of misconduct to the board such as is implicit in the Journal editorial. Whatever inconsistencies the board committed in ruling on challenged ballots and other issues do not result from partisan mischief.

Secretary of State Ritchie is another story. While he displayed no visible partisanship in his capacity as chairman of the Board of Canvassers, his work as Secretary of State appears to have proceeded in close collaboration with the Franken campaign. We wrote about Ritchie’s collaboration with Franken in “Minnesota’s recount goes south.”

Given his role as chairman of the Board of Canvassers, I believe this collaboration to be inappropriate and improper. We have filed a freedom-of-information request with the Secretary of State’s office regarding communications with the Franken campaign. So far as I know, we seem to be alone in raising concerns about Ritchie’s coordination with the Franken campaign. One way or another, the response to our freedom-of-information request should be interesting.

The portrayal of Senator Coleman as a victim akin to Dino Rossi in the Washington recount fiasco is misleading. Friends of ours who have observed the process up close and who know the players managing it on behalf of Senator Coleman share our misgivings regarding this portrayal. Senator Coleman has acted a bit like an NFL team sitting on a two-point lead in the closing minutes of the fourth quarter and playing zone defense. He could have been much more aggressive in protecting his position in the days since November 5.

One overlooked aspect of the process is the different approaches the two campaigns took once the recount began. From the outset of the recount process, the Coleman campaign has been remarkably passive in its approach. They have improvised strategy from day to day and spent too much time “spinning” the Franken campaign’s activities, while expecting their lawyers to protect them. They have not appeared to me to have a handle on what was happening or on what was likely to happen.

Franken’s campaign recognized immediately the opportunity to “find” more votes with the “improperly rejected” absentee ballots. The Coleman campaign may have erred at the outset when it failed to initiate its own efforts or craft a countervailing strategy.

The Coleman campaign appears to have bet they could create a legal firewall that would prevent the “improperly rejected” absentee ballots from getting counted. In any event, the Coleman campaign appears to have been caught flatfooted when the Minnesota Supreme Court decided these ballots should be included in the recount subject to agreement of the parties (and also subject to the possibility of sanctions for withholding agreement in bad faith).

Whatever my inferences, the Coleman campaign was visibly floored by the result when the ballots they had agreed to include were counted on Saturday. The campaign has not put on a performance that makes an impression of anything other than ineptitude.

The fact that very few “improperly rejected” ballots came from Republican counties appears to me to derive in part from the lack of a proper response to the Franken campaign recount strategy. The Coleman campaign has nevertheless identified 654 “improperly rejected” absentee ballots from Republican counties that were excluded from the recount (and that may be included in the election contest).

In a fluid process like a recount, the proper approach is to assume that anything can happen and operate accordingly. Contingency planning is critical. Betting everything on an outcome you don’t control is simply foolish, not just in a recount, but in any endeavor. The Franken campaign outhustled and outsmarted the Coleman campaign. If I were advising Senator Coleman, I would tell him to shake up his team and send in a new quarterback to run the offense now that he has the ball in overtime, i.e., the election contest. I would tell him to send in Dorsey attorney Roger Magnuson from the bench onto the field to lead the team.

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