Twelve thoughts on the election contest order

The order entered by the three-judge panel presiding in the Coleman election contest proceeding is accessible here. A few observations:

1. The three judges all concurred in the order. It is to their credit that they are trying to resolve the difficult issues before them with unanimity.

2. Senator Coleman argued that the pool of improperly rejected absentee ballots subject to review in the election contest was approximately 4,797. Franken contended that the pool was limited to the 650 absentee ballots alleged in Senator Coleman’s election contest pleading. The order rejected Franken’s contention and held that Coleman’s election contest pleading effectively put the larger pool of rejected absentee ballots in issue.

3. The order expands the pool of rejected absentee ballots subject to review as having been improperly rejected from the remaining 11,000 absentee ballots rejected on election night. As John noted yesterday, the expansion of the pool of rejected absentee ballots subject to review is a big win for Norm Coleman.

4. The order does not mean that any of the 4,797 previously rejected absentee ballots will 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.

5. The order establishes the standard that is to determine whether any of the rejected absentee ballots in issue will be counted. The standard is whether the ballot met the four statutory criteria set in Minnesota law, or whether the voter’s noncompliance with the statutory criteria was due to no fault of the voter. The latter allowance is also a win for Coleman.

6. The previously rejected absentee ballots were rejected by local officials on election night for noncompliance with the four statutory criteria governing absentee ballots. The likelihood that any given absentee ballot will be found to have been improperly rejected in the course of the election contest is in my estimation not high.

7. The order notes that Senator Coleman’s election contest pleading gave as an example of improperly rejected absentee ballots those that were marked “accepted” but were in fact rejected, ballots not marked “accepted” or “rejected” but which should have been accepted, ballots with obvious election judge error on the face of the ballot, and ballots delivered to the wrong precinct. Examples of rejected absentee ballots in each category are attached as Exhibit B-2 to Senator Coleman’s Notice of Contest, which is accessible here.

8. The order is confined to addressing the pool of previously rejected absentee ballots that Senator Coleman can seek to have reviewed in the election contest. It does not address 771 previously rejected absentee ballots that Franken has alleged were improperly rejected. It is likely that they too will be subject to review in the election contest.

9. Senator Coleman has abandoned his claim that the ballots that mysteriously appeared in Maplewood during the recount were improperly included in the recount. The election contest proceeding has thus been reduced to essentially two issues: Which of the previously rejected absentee ballots identified by Coleman or Franken should be counted? Were as many as 130 ballots counted twice in heavily Democratic precincts?

10. Franken’s and the Democrats’ interest in counting every ballot disappeared a long time ago. The Minnesota Supreme Court entered orders related to the recount that essentially reserved the two issues before the election contest panel for the election contest phase of the election. The assertion by Franken and Democrats elsewhere that the election is over (Harry Reid: “The race in Minnesota is over with. . . .There’s no way the election results are going to change”) has been made in bad faith.

11. The order establishes the contours of the election contest and makes it likely that the election contest will continue for several weeks.

12. Senator Coleman trailed Franken after the recount by 225 votes. I think it is fair to say that the Coleman campaign has proved during the election contest that at least a few previously rejected absentee ballots were improperly rejected. The final result of the election remains in doubt.

JOHN adds: Number 13. The Coleman campaign made a terrible mistake in agreeing to count the rejected absentee ballots that Franken wanted counted, without getting a reciprocal agreement to count the ones that Coleman wanted counted. This tactical blunder is the reason for the perception that Franken had an insurmountable lead.

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