Minnesota Senate Recount, Update XVI

Earlier today, Minnesota’s Canvassing Board certified the results of the Senate recount, with former comedian Al Franken holding a 225-vote lead. The Coleman campaign immediately announced that it will file an election contest tomorrow.

The status of the recount has been widely misreported and widely misunderstood. Under Minnesota law, the post-election process has three stages: canvassing, in which the returns from the precincts are tabulated and clerical errors in reporting results are corrected; recount, in which the ballots that were cast on election day are hand-counted; and contest, in which disputes about what ballots should be counted and any other disagreements are resolved. So far, only two of the three stages have been completed. The resolution of disputed issues remains.

Coleman’s contest of the returns so far is not, as some have claimed, a “sore loserman” tactic. There are highly legitimate issues surrounding the election which have not yet been addressed by any body. Those issues, some of which appear highly meritorious, will be considered for the first time in the election contest.

A number of issues will be raised in the contest, but two are most important. First, Coleman argues that an additional 654 absentee ballots that were rejected on election day should be counted.

It was Al Franken who first started talking about the “wrongly rejected absentee ballots” when he was behind in the recount. Franken’s theory was that the counties should go through the absentee ballots that they rejected, and did not count, on election day. The counties, Franken said, should identify any ballots as to which they wanted to change their minds, and add those ballots to the ones being tabulated by the Canvassing Board. Coleman objected to this procedure, in part because there was no uniform standard to guide the counties. The Supreme Court, however, directed the counties and the two campaigns to confer and identify any ballots that they all agreed had improperly been rejected. Those ballots would be counted by the Canvassing Board; any ballots on which the parties did not agree would be reserved for the contest phase.

The fatal flaw in this procedure was that the counties did not approach the task in the same manner. Some–in general, the more partisan, DFL-controlled counties–approached the job aggressively and put the maximum number of ballots in the infamous “fifth pile” to be counted by the Canvassing Board. Other counties took the position that to the best of their knowledge, the decisions they made on election day were right, and they put zero ballots in the “fifth pile.” The result was rampant inconsistency.

The counties put a total of around 1,350 absentee ballots in their “fifth piles.” The Coleman and Franken campaigns reviewed these ballots and concluded that around 400 of them were correctly rejected in the first place. (This suggests that some counties were, indeed, overzealous in selecting ballots for the “fifth pile.”) The campaigns agreed that the remaining 933 ballots could go to the Canvassing Board and be counted.

In addition, the Coleman campaign identified 654 absentee ballots which it believed had been wrongly rejected, at least by the standards that were being followed by the other counties, but were not put into the “fifth pile” by the counties where the votes were cast. Coleman argued that for the sake of consistency, these ballots, too, should go to the Canvassing Board and be counted. Franken, however, refused to agree to count any of these ballots. (We’re not hearing any more from local Democrats about “counting every vote.”)

By way of example, in at least one county ballots were put into the “fifth pile” if they were witnessed by an election judge but not signed by the voter. This is inconsistent with state law, which requires absentee ballots to be signed by the voter. Most counties, therefore, did not put such ballots in their “fifth piles.” Nevertheless, the ballots so identified by the county that de facto changed the statute have been counted by the Canvassing Board. Coleman argues that for the sake of consistency, ballots in the same category from other counties should likewise be counted.

The Coleman campaign says that included in its 654 additional ballots are some that satisfy all statutory requirements and, in addition, were marked “accepted,” not “rejected,” on election day. Nevertheless, apparently because of clerical error, these ballots were put in the “rejected” pile. Franken refuses to agree to count them, so they will have to be addressed in the contest.

The second principal issue relates to duplicate ballots. It appears clear that in several Democrat-leaning precincts, a number of ballots were counted twice. In some precincts, more ballots were counted than the number of voters who showed up on election day. The Coleman campaign raised this issue with the Canvassing Board, which concluded that it had no alternative but to count the ballots even though at least one member of the board said publicly that he believed they were counting some ballots twice. Coleman then took the issue to the Supreme Court, which held that it would require fact-finding to determine whether and to what extent ballots had been double-counted, and therefore the issue would have to be reserved for the contest phase. It seems likely that Coleman will win this issue, and his campaign believes it will represent a swing of 100 or more ballots in Coleman’s favor.

So Coleman has ample grounds to file an election contest, and he most likely will gain a number of votes when additional ballots are counted and duplicates are eliminated. It is impossible to say at this point whether such gains will be enough to win the election. One way or the other, it is going to be a photo finish.

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