Coleman’s quagmire

Yesterday the three-judge panel hearing the Coleman-Franken election contest denied Senator Coleman’s request to reconsider their ruling this past Friday on the standard applicable to the 4,800 rejected absentee ballots raised by the Coleman campaign in the election contest. In their ruling the three-judge panel insisted on compliance with Minnesota’s absentee ballot statute.

The Coleman campaign complains that enforcing compliance with the absentee ballot statute creates inconsistencies in the treatment of absentee ballots. Included among the 933 rejected absentee ballots included in the recount, the Coleman campaign asserts, are 100 ballots that fail the test of statutory compliance. Senator Coleman’s lawyers agreed to the inclusion of all 933 ballots in the recount. If 100 of these absentee ballots didn’t comply with the absentee ballot statute, why did the Coleman legal team agree to their inclusion?

The election contest has revealed that local election officials treated absentee ballots in an inconsistent manner. Some local officials rejected absentee ballots for noncompliance with certain statutory requirements; others took a more freewheeling approach. The Coleman campaign’s proposed approach is to accept accept all such illegally cast absentee ballots as a matter of federal constitutional law. Ben Ginsberg calls the failure to adopt this approach “a legal quagmire.”

Jay Weiner provides a sympathetic account of the issues raised by Ginsberg yesterday in response to the panel’s denial of the request for reconsideration of the February 13 ruling on rejected absentee ballots. I commented less sympathetically on Senator Coleman’s request for reconsideration in “Coleman’s complaint” and posted Ben Ginsberg’s response here.

Taking Ginsberg at his word regarding the 100 ballots, a quagmire may exist. My less sympathetic reaction to Senator Coleman’s complaint regarding the panel’s ruling on the standard for accepting rejected absentee ballots derives from the fact that to the extent that a quagmire exists, it is in part the creation of Senator Coleman’s legal team.

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