13 varieties of rejected absentee ballots out

Earlier this month the three-judge panel presiding in the Coleman-Franken election contest proceeding determined that Senator Coleman could seek review of 4,797 rejected absentee ballots. As we explained at the time, the order did not mean that any of the 4,797 previously rejected absentee ballots would be counted. Rather, it means that the ballots will be reviewed to determine whether they were improperly rejected. If it is determined that they were, then they will be counted.

The Minnesota absentee ballot statute sets forth four requirements for acceptance of an absentee ballots. The rejected absentee ballots subject to review in the election contest proceeding fall into a variety of categories. While not quite a Heinz-like 57 varieties, it is more than the Stevens-like 13 ways of looking at a blackbird. The number is substantial.

In an effort to narrow the scope of the trial, the panel asked the Coleman and Franken to address 19 of these categories. On Friday the panel issued an order — the order is accessible here — ruling on the categories.

Franken argued (here) for the acceptance of a bare minimum of rejected absentee ballot categories; Coleman argued (here) in favor of acceptance of ballots in most of the 19 categories.

The panel’s order refuses to consider rejected absentee ballots in 13 of the 19 categories, emphasizing that the test under Minnesota law is whether the ballots were legally cast. If they don’t comply with the absentee ballot statute, the panel held, the ballots were not legally cast. It seems to me a well-reasoned order.

After the panel’s ruling, how many of the 4,797 rejected absentee ballots remain in issue? Jay Weiner talked to a number of participants and observers to try to reach an assessment. The consensus is that approximately 3,500 rejected absentee ballots remain in play.

The panel’s ruling does not expressly address the the remaining six varieties of rejected absentee ballots it asked the parties to address or any others that may be at issue. UCLA Law School Professor Daniel Lowenstein comments: “One of the categories that the judges left open is for mismatches between the signature on the envelope and the registration signature. As one would expect, that is reportedly a large category. And it will be a time-consuming one to adjudicate. The end is not yet in sight.

JOHN adds: I believe the Coleman campaign thinks that as long as around 2,000 to 2,500 of the ballots ruled “in play” are eventually counted, Coleman’s margin among those ballots will be enough to overtake Franken, assuming that he also wins the duplicate ballot issue. So, while this ruling could have been better for Coleman, I don’t think it was fatal.

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