Coleman’s complaint

In its ruling Friday on the standard applicable to the 4,800 rejected absentee ballots raised by the Coleman campaign in the election contest, the three-judge panel insisted on compliance with Minnesota’s absentee ballot statute. The judges’ ruling is reasonable on its face. Compliance with the absentee ballot statute is the touchstone determining whether a ballot was “legally cast.” The object of the election contest is to determine which candidate received the most legally cast ballots.

Yesterday the Coleman legal team submitted a letter to the contest panel protesting the ruling on equal protection grounds. In part, the letter stated that the standard pronounced by the judges contradicts what was previously done:

On February 10, 2009, when the Court granted summary judgment to several of the Nauen interveners whose ballots do not meet these standards.

On February 3, 2009, when the parties stipulated and the Court signed an order that all of the 933 ballots opened on January 3, 2009 were “properly and lawfully opened and counted,” even though it appears scores of them do not meet the court’s standards announced Friday.

In mid-January, when the Secretary of State notified only 413 voters that their absentee ballots had been rejected.

On January 3, 2009, when in accordance with orders of the Supreme Court and under the auspices of the Canvassing Board scores of ballots, which would be illegal votes under the standards the Court has now adopted, were opened and counted.

On election day itself, when 87 counties and scores of municipalities opened some 280,000 ballots, a material number of which did not meet these standards.

As to item 1 on this list: Reading the panel’s February 10 order, i find it difficult to identify the “several” voters whose rejected absentee ballots did not meet the stautory standards. On the face of the order, the panel applied the statutory criteria to the 23 ballots it ordered counted of the 61 before it. The panel held that the 23 voters had provided unrebutted evidence that their absentee ballots were legally cast.

The Coleman campaign filed a memorandum agreeing to the counting of all 61 rejected absentee ballots at issue in this batch so long as all such ballots were to be counted. The judges reserved ruling on the remaining ballots because the compliance of these absentee ballots with the statutory criteria was in doubt (in legal lingo, raised a question of fact).

As to item 2 on this list: Senator Coleman’s legal team agreed to the inclusion of the 933 rejected absentee ballots. Did the Coleman legal team agree to the inclusion of any ballots that did not meet the statutory criteria adopted by the panel in its order on Friday? If so, the Coleman legal team made a mistake.

As to item 3 on this list: I need more facts in order to comment.

As to item 4 on this list: See item 2. They are talking about the same 933 absentee ballots to which the Coleman legal team agreed.

As to item 5 on this list: The Coleman team asserts that Minnesota election officials accepted “a material number” of illegally cast absentee ballots. If true, various election officials erred. Is the remedy to accept all such illegally cast absentee ballots as a matter of federal constitutional law?

I may well be missing something. Based only on my own reading of the filings and court orders, however, I find the Coleman campaign’s equal protection complaint full of sound and fury, signifying (1) that Senator Coleman’s own legal team served him poorly during the recount, and (2) that the panel’s order on Friday cutting back the 4,800 rejected absentee ballots subject to review in the contest may have hurt more than Senator Coleman’s team has heretofore let on.

UPDATE: Coleman campaign attorney Ben Ginsberg responds to my observations here.

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