A setback for Senator Coleman

The tabulated vote following the Coleman-Franken Senate election showed Senator Coleman with a lead of 215 votes out of nearly 3,000,000 votes cast. The narrow margin triggered an automatic recount under Minnesota law. During the recount phase of the election, Senator Coleman lost his narrow lead to Al Franken.

Immediately following the election, trailing Senator Coleman by an incredibly narrow margin, 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.

Senator Coleman was poorly served by the lawyers representing him and others calling the shots on his behalf during the recount. I set forth my criticism of their work in posts including “Overtime in the Minnesota Senate election” and “Count every vote, Republican-style.” The Coleman team’s complacency and ineptitude allowed Franken to control the recount phase of the election, and the recount phase has proved critical.

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. Urging that the election contest panel disregard the applicable requirements of state law for absentee ballots, 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. The Coleman team submitted evidence tending to prove that the requirements of Minnesota law applicable to absentee ballots were not uniformly applied by local election officials around the state.

The Coleman team’s proposed remedy is the inclusion of noncompliant absentee ballots that were excluded by local officials in Republican-leaning counties. Urging a panel of judges to disregard the law never seemed a promising path to victory, at least to me. Commenting on a February ruling by the election contest panel, Coleman lawyer Ben Ginsberg somewhat paradoxically proclaimed the judges’ adherence to the law “a legal quagmire.”

The election contest trial proceedings have concluded and the case has been submitted to the three-judge election contest panel. Yesterday the election contest panel issued a ruling rejecting most of the absentee ballots Senator Coleman sought to have included in the vote total. The decision provides for additional review of 400 absentee ballots, which ultimately may or may not be counted, but many if not most of these ballots are ballots that Franken seeks to have included in the vote total. It is therefore likely that Franken will emerge from the election contest with an enhanced lead.

The decision has not yet been posted on the court’s Coleman v. Franken election litigation page. It is accessible here via Jay Weiner’s report on the decision. Although the outcome of the election contest remains to be determined, the Coleman team reads the writing on the wall. Weiner paraphrases “noted political pundit and former Twins manager Billy Gardner” to the effect that “the fat lady has entered the building and she’s clearing her throat.”

Through Coleman lawyer Ben Ginsberg, Senator Coleman now vows to appeal the outcome of the election contest to the Minnesota Supreme Court. Ginsberg commented on yesterday’s decision:

“Unfortunately, this court’s action will result in thousands of Minnesota voters remaining disenfranchised. The court’s imposition of its own set of standards used nowhere in Minnesota on election day violates constitutional due process and equal protection rights and means that votes the court itself said are illegal are included in the final counts. As a result, this leaves us no choice but to appeal any final decision that includes these errors to the Minnesota State Supreme Court. This refusal to come to grips with what actually happened on Election Day and in the Canvassing Board recount just emphasizes that Minnesotans can have no faith that the results of the November 2008 United States Senate election will ever truly be determined with any fairness or accuracy unless all the votes are counted under the rules that were practiced on Election Day.”

Measured against the election contest panel’s careful treatment of the Coleman team’s legal argument about the inclusion of noncompliant absentee ballots, Ginsberg’s mantra about “disenfranchised” Minnesota voters is in my view frankly ludicrous. The case submitted by Senator Coleman during the election contest nevertheless supports the proposition that Minnesota’s absentee ballot procedures are farcical. Republican-leaning counties enforce the statuory requirements applicable to absentee ballots; Democratic-leaning counties ignore them. John Hinderaker elaborated on the issue earlier this month in “Do over in Minnesota?.”

Having failed to persuade the panel to ignore Minnesota’s absentee ballot statute with respect to the rejected absentee ballots he sought to have counted in the contest, Senator Coleman raises the question of what remedy might exist for the inclusion of illegally cast absentee ballots counted by local officials on election night. It is a serious question whose answer is clouded by the the practical impossibility of uncounting the illegally cast absentee ballots counted on election day.

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