by Bill Kavanagh: It’s becoming apparent that the Minnesota Supreme Court
has unwittingly opened a door to monkey business that will be difficult to shut
during the current phase of the Senate race recount between Al Franken and Norm
Coleman. I originally wondered
about a provision in the court’s ruling last week that required agreement
between officials and both campaigns on counting any remaining absentee ballot,
but since most election law experts seemed not to pay it a lot of attention, I
figured there must be less to worry about than it seemed. It struck me that no one party should
have the right to set a ballot aside unilaterally. A minority of one could therefore strike any ballot from the
totals.
However, the MN Supremes left it to state canvassing officials and both campaigns to agree on standards for counting absentee ballots erroneously left out of the original results— and gave the camps until Friday to do so.
In response, the Coleman campaign turned around and rejected almost all ballots in at least one blue county (59 out of 60 ballots), a huge percentage in other blue counties, and also adopted a policy of stonewalling any statewide agreement on overall standards that might allow the count to go forward easily. They wanted to count some ballots that hadn’t been in the agreed upon group of improperly rejected ballots, their numbers didn’t add up, and their grounds for counting some ballots didn’t jive with their grounds for rejecting others.
It shouldn’t have been a surprise that they’d make outrageous demands, since the Coleman team had nothing to lose by screwing with all individual Franken votes but had nothing to gain by letting the count go forward toward predictably certifying a Franken victory. Coleman was behind and the absentee ballots statewide had been running Franken’s way anyhow. Why not try to make up the difference on any grounds, no matter how specious?
This seems to be exactly what’s up on the Coleman side. The effect of their tactics in blue counties, along with the Franken campaign’s absence of any reciprocal scorched-earth policy against Coleman ballots or red counties, will almost certainly mean that Coleman gains ground in the remaining absentee ballot count, while many Franken votes will be left off the certified recount total.
What has been a plurality of 49 votes for Franken—with an expected increase in the Franken plurality to come— might well become a substantially slimmer margin—or actually go towards Coleman, before the whole tally goes back to court again.
Nate Silver at fivethirtyeight.com points out that Team Franken would have been within its rights to adopt a similar approach to Coleman red county ballots that the Colemanites took to Franken ballots in blue counties—and just object to absolutely everything possible in those counties where they’d be likely to run behind, no matter what the state rules for ballot acceptance are, since their lone objection would automatically keep any ballot out of the recount total.
Silver suspects that the Franken team is more interested in taking the high moral ground, thinking that they leave the door open to an Equal Protection argument in any ensuing court action if the Coleman campaign takes radically different positions on ballots in counties where they are ahead as opposed to counties where they trail. This equitable approach presupposes that a court will ultimately look at all the votes.
My own growing concern about this position is that, as we saw in Bush v. Gore, the courts don’t always look at all the votes, sometimes only at where the tally is at a moment when the majority of the court wants to freeze the result— and certify a winner. Hence, staying ahead in the interim tally sometimes becomes more important than ultimately being the candidate with the most votes legitimately cast for your side at some theoretical perfect end. Hopefully, a court decision won’t be made with the same kind of partisan underpinnings as Bush v. Gore, but winning now is better than being able to say you were right for the next six years.
(see Memorandum for comments)
Comments