Postscript on Franken Senate Victory: The Coming Court Challenge

by Bill Kavanagh:  It appears that the Minnesota Supreme Court is going some distance towards limiting the damage that might have been caused by a detail in an earlier Supremes ruling (December 18) in the by-a-hair Franken-over-Coleman Senate election, now just finished recounting, with Al Franken ahead by only 225 votes out of about 3 million cast.

 For those of you who are really into election minutia, you may have read here that I was earlier quite concerned about an aspect of the  December 18 MN Supremes’ election decision.  

That provision was that the justices allowed either campaign, on its own, to request that canvassing officials strike an absentee ballot, before it was opened and taken out of its envelope, to which that campaign objected.  That ballot would then be set aside and excluded from the recount total. 

 The particular universe of ballots concerned here were previously uncounted absentee ballots, mailed in time and received by election clerks by election day, but uncounted in the original Senate election totals. The ballots were identified already, during the recount, as having been improperly rejected for minor clerical reasons.  They presumably should all have been counted in the first place.

 While the ballots hadn’t yet been opened and counted, they had been identified and set aside by the state canvassing board for the recount.  The Coleman campaign had originally objected to these ballots being counted at all, but by the time the Supreme Court ruled on their validity, they were becoming key to the Republican’s chances of actually holding onto his seat.  Coleman had by the end of December fallen behind by 49 votes during the recount.

 Since the Coleman campaign was against the wall already, once the Supremes’ ruling was made in December, the GOP Senator’s strategy was to turn around and immediately object to counting huge percentages of those same absentee ballots particularly in two heavily Democratic counties, thereby excluding almost all the ballots in one county and about 30% of those in another.  They didn’t object with the nearly the same vigor in other GOP-dominated counties, thinking this tactic would skew the vote totals among the remaining newly-counted absentee ballots.  More ballots from GOP areas counted, less from Democratic areas, probably a plus for Coleman in the total, no?

 The strategy backfired, yielding instead an unexpectedly large number of the remaining now-opened absentee ballots as Franken votes.  This had the effect of increasing, not decreasing or erasing Franken’s lead. 

 So now, with the recount finished, Coleman went back to the Supreme Court this morning to request that the absentee ballots not be included after all—and that the canvassing board not certify the recount totals today showing Franken the presumptive winner.

 Coleman claimed an equal protection argument, complaining of different standards used in different counties, even while his own campaign was largely responsible for those differing standards.  The Supremes refused Coleman’s request to delay the recount announcement, but issued the following language in doing so:

 

“… the threshold question before us in this motion is whether disputes over rejected absentee ballots can be resolved in this automatic recount proceeding, or whether they must await an election contest proceeding.”

 

The Supremes are apparently smarter than they seemed, or at least more able to recover from a badly framed earlier point than one might have expected.  They seem to have brought unanimity to their decision this morning by taking on the responsibility to deal with the remaining ballots as part of an “election contest” (read: Court Hearing) after the canvassing board certified their work this afternoon.

 Now, the Supremes need only deal with ruling on the 654 absentee ballots not yet counted, due to objections by either the Franken or Coleman campaigns among the group in question.  Even the dissenting Justice on the December ruling, Alan Page signed onto this morning’s decision.

 The shorter explanation of all this is:  If you think Franken was ahead today, wait till the Supremes throw most of the rest of the disputed ballots back into the recount totals, now that both the Franken and Coleman campaigns agreed on the rest of the ballots’ validity together.  Game, set, match.

 Other arguments included in the Coleman contest will be their claim that 150 or so votes may have been double-counted in machine failures and that 130 ballots that were counted, accounted for in the voting rolls, but since the paper ballots corresponding to them were later lost in the process of storage, they should be struck from the total.  These arguments will not likely change the new balance in Coleman’s favor, even if each point is decided his way.

 It's now a matter of time.  Franken has declared victory and will doubtless be moving to Washington soon.  Meanwhile, the MN Supremes will be tidying up the last of the longest recount in memory.  Boy, those Minnesotans are meticulous!