Minnesota’s recount goes south

This past Monday the city of Minneapolis announced that it was giving up the search for the 133 ballots that are allegedly missing from a heavily Democratic precinct. The 133 ballots netted Al Franken 46 votes. Up to that point the Franken campaign had been in an unusal state of agitation, demanding the use of forensic techniques to scour for the missing ballots. Upon the announcement of the suspension of the search, however, the Franken campaign was remarkably placid:

“While we are disappointed that the envelope containing 133 missing paper ballots have not been found, we take solace in the fact that the voters of this precinct will still have their votes counted, as the secretary of state has said that the canvassed and audited election night results may stand in the absence of these ballots,” Franken attorney Marc Elias said in a statement.

Why the sudden complacency about those “missing” ballots? The Franken campaign appeared to have arrived at an understanding with Minnesota Secretary of State Mark Ritichie about their treatment by the Canvassing Board that is presiding over the recount: “A spokesman for the secretary of state’s office said the state Canvassing Board will listen to the city’s explanation for the loss and decide whether to include the votes.”

What do you know? Franken’s confidence was not misplaced. As the Star Tribune reports, yesterday the Canvassing Board approved the use of Election Day results for 133 Minneapolis ballots. How did Franken get a bead on that decision? What kind of discussions are going on behind the scenes between Franken’s campaign and Ritchie, the Man from ACORN? So far as I know, no one has even raised the question.

Including the 133 ballots seems wrong on its face. The statutory mandate of the recount is to recount the ballots cast on election day to arrive at a final result. Whence the Canvassing Board’s authority to include nonexistent ballots in the recount? They can’t be reounted, though they might be subject to inclusion in a subsequent judicial proceeding.

Thus we begin to wonder what is going on here. The Canvassing Board’s treatment of the “missing” 133 ballots was not the board’s worst decision. That was reserved for its adoption of the Franken campaign’s approach to certain absentee ballots that were rejected on election day and excluded from the recount — the “fifth pile” absentee ballots. The board has now “recommended that counties sort and count absentee ballots that were mistakenly rejected.”

But the treatment of rejected absentee ballots has varied from county to county among Minnesota’s 87 counties. Some counties — including some strongly Republican counties — have declined to sort rejected absentee ballots in the “recommended” manner. Other strongly Democratic counties such as St. Louis counties, the source of many late-arriving and mysteriously appearing Franken votes after election day, have relatively whopping numbers of “fifth pile” rejeceted absentee ballots.

The board’s action again conflicts with the statutory recount scheme. Minnesota (Democratic) Attorney General Lori Swanson appeared at the board meeting yesterday. Her office had previously been represented before the board by election law expert Ken Raschke, who provided the board an opinion inconsistent with a position urged by Franken at the outset of the process. Swanson is now promoting the improvisations desired by Franken, but told the board “that they have no authority to order counties to reopen their canvasses and go back through the rejected absentee votes.”

There is no lawful basis for the action “recommended” by the board. And there is no basis for confidence in the process triggered by the board’s “recommendation.” Listen, for example, to Ramsey County’s Joe Mansky:

Joe Mansky, Ramsey County’s elections director, said he will be consulting with county attorneys on Monday to seek more direction about the Canvassing Board’s request. The county has determined it has 156 improperly rejected ballots, 34 of them from St. Paul.

“If we get an order from some place or if the county attorney advises us to open them up and count them, we’ll open them up and count them,” Mansky said.

So the board now brings Minnesota to the verge of a Florida-style fiasco. The treatment of rejected absentee ballots may vary throughout the state, subject to no uniform standard. Many counties have refused to sort rejected absentee ballots in the “recommended” manner. No standard for including previously rejected absentee ballots has ever been provided. It is not part of the recount process contemplated by the statute.

Going back to the board’s treatment of the “missing” 133 Minneapolis ballots, I am struck by the confidence exhibited on Monday by the Franken campaign regarding the board’s disposition of the issue. The confidence can only have derived from the Franken campaign’s communications with Secretary of State Ritichie out of public view. Franken’s placidity in the face of the city’s decision to abandon the search for the ballots is otherwise inexplicable.

In the words of the song, there’s something happening here. What it is ain’t exactly clear. And I do hope everbody will look at what’s going down.

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