Uncount every vote!

If one can achieve some emotional detachment from the stakes involved, the Coleman-Franken recount and election contest may provide entertainment value. The role reversals alone are a fertile source of comedy.

Immediately following the election, trailing Senator Coleman by an incredibly narrow margin, Al Franken began the traditional Democratic “count every vote” drumbeat. Franken instituted litigation to accompany the drumbeat. Working through a maze including a trip to the Minnesota Supreme Court that led to the inclusion of 933 previously rejected absentee ballots with Senator Coleman’s agreement, Franken emerged at the end of the recount with a 225-vote lead.

Yet more than 11,000 absentee ballots were left out of the recount. They were excluded by local officials for various infractions of the absentee ballot statute. Somewhere between the trip to the Minnesota Supreme Court and the 225-vote lead, Franken lost interest in counting every vote. Indeed, Franken has taken advantage of some votes that seem to have been counted twice in heavily Democratic precincts.

Among the ballots that have remained uncounted are those of servicemen voting under the Uniformed and Overseas Citizens Absentee Voting Act if their balltos were received by election officials after the deadline for normal absentee ballots. (The Republican National Lawyers Association has issued a press release and accompanying white paper on the subject.)

After the recount, Senator Coleman picked up the “count every vote” drumbeat. In the election contest that he brought to challenge the result of the recount, Senator Coleman has argued that the technical requirements of the absentee ballot statute should be disregarded if they were not uniformly observed throughout Minnesota. Arguing for disregard of the applicable requirements of state law, the traditional Democratic-Republican role reversal was complete.

The Coleman legal team has framed its argument regarding the excluded absentee ballots in the name of equal protection. Urging a panel of judges to disregard the law never seemed a promising path to victory, at least to me. Coleman lawyer Ben Ginsberg somewhat paradoxically proclaimed the judges’ adherence to the law “a legal quagmire.”

The Coleman team now protests the inclusion of 100 allegedly illegal absentee ballots among the 933 it previously agreed to. Why the Coleman team agreed to their inclusion is a question for another day. Now the Coleman team is asking the election contest panel of judges to uncount the wrongly included absentee ballots.

The Coleman team has filed a motion for a temporary injunction precluding the Secretary of State from doing anything that would prevent the uncounting of the 100 ballots. In a press release issued yesterday, Senator Coleman’s team explained:

Ballots identical to ones declared illegal by the three-judge Senate contest court in a February 13 order are included in the current vote totals of the candidates, a situation that must be remedied if there is to be a valid conclusion to the U.S. Senate election, Senator Norm Coleman’s campaign said today.

“The most recent court ruling by the three-judge panel declares categories of ballots ‘illegal’ and throws into doubt the current count which contains thousands of ballots the court has now found illegal, meaning that Al Franken’s lead is officially not real – and a valid result in this election is in serious doubt. Until and unless these serious problems are addressed, Minnesotans can have no confidence in being able to know who actually won this race. The judges must remedy the situation created by their Friday the 13th ruling that has resulted in ballots they now rule to be illegal to also be included in the current totals,” Coleman counsel Ben Ginsberg said.

In its Motion to have the court apply its February 13, 2009 order uniformly to the previously counted absentee ballots, the campaign noted that the court said it “must enforce the comprehensive statutory scheme governing absentee balloting in accordance with its unambiguous terms.” To do that, the campaign said the court must resolve the conundrum that “certainly hundreds, and likely thousands, of absentee ballots are already opened and included in the current count that under the Court’s analysis were not legally cast votes.”

Specifically, the campaign cited seven ballots the Court ordered included in the count on February 10 that it rendered illegal in its own February 13 ruling; more than 30 ballots that representative of nearly 100 included in the January 3 Canvassing Board recount that are now illegal under the Friday the 13th order, and 97 ballots representative of thousands of absentee ballots counted on election night in the counties that are now “illegal” under the Court’s ruling.

The Coleman filing includes copies in excess of 135 actual ballots that are representative of those now in the count but invalidated by the Court’s order. The campaign also filed an emergency motion offering the option of ordering the Secretary of State to preserve the status quo for all materials and the 933 ballots counted by the Canvassing Board. The Court and the two campaigns had signed a stipulation on February 3, 2009 that all those ballots are “lawful” and could be separated, but the campaign’s motion noted the Court’s February 13 contradicts that.

The examples attached to the pleadings include ballots counted on election day, during the canvassing board recount and on February 10 but which are now “illegal” according to the court in the following categories: ones where the voter did not sign the certification; the witness notary failed to affix stamp or seal; the witness gave out-of-state address; there was no identification number on UOCAVA ballot; there was no witness to the ballot; the voter did not include an address; the witness did not include an address or there was no proof of residence for the voter or witness.

The Memorandum also includes detailed statistics demonstrating that numerous ballots witnessed by persons who are not Minnesota voters and where the signatures on the absentee ballot envelope and ballot application did not match are included in the current counts. These ballots were also ruled illegal in the Court’s February 13 order.

Having failed to persuade the panel to ignore Minnesota’s absentee ballot statute with respect to the rejected absentee ballots it sought to have counted in the contest, the Coleman team now seeks to persuade the panel to enforce the statutory standard to exclude already counted ballots. In its response, the Franken team predictably points out the Coleman team’s reversal of form on the 933 absentee ballots.

Senator Coleman’s motion raises the question of what remedy might exist for the inclusion of absentee ballots the panel has in essence determined to have been illegally cast. It is a serious question whose answer is clouded by the Coleman team’s own agreement regarding the 933 absentee ballots and the practical impossibility of uncounting the illegally cast absentee ballots counted on election day..

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