I apologize for interrupting the back-and-forth about how Obama is or is not failing us, but there is news on other fronts, including the drawn out fight to be Minnesota's next U.S. Senator. Wednesday brought big developments on two fronts, as lawyers took center stage in the Coleman v. Franken drama. The first development was not unexpected, while the other one seemed to blindside even Franken's counsel.
First and foremost was the hearing before the Minnesota Supreme Court, regarding the Coleman campaigns petition for an injunction. The Coleman campaign seeks to prevent local canvassing boards from reviewing decisions to reject absentee ballots -- reviewing for "obvious errors" -- and, most especially, to prevent them from generating revised vote tallies that would reflect the votes of hundreds of absentee voters whose ballots were wrongly rejected.
A second controversy erupted when the Coleman campaign argued that the Canvassing Board should not look at the original ballots of those voters who had to use duplicate ballots to vote, because of damage to the originals. This complaint violated an earlier agreement between the two campaigns to use the original ballots for ballot challenges based on intent.
At the Supreme Court, with two of the seven justices recused (they're sitting on the State Canvassing Board, which was named in Coleman's suit), lawyers representing both campaigns, the State, and one of the named county canvassing boards (Isanti County) were grilled for just over an hour. As ever, it's probably a mistake to try and guess at where the court will land, based only on the questioning -- but, here I go:
The starting point for the Minnesota Supreme Court was a 1962 case which decided the Gubernatorial race that year. Anderson v. Donovan was the endpoint of what might be the most outrageous post election legal battle outside of the 2000 Presidential election, but it is sadly forgotten. The Republican candidate for Governor, Elmer Anderson, appeared to have lost the election to Karl Rolvaag, the Democratic Farmer-Labor Party candidate, by the grand total of 58 votes. The vote was certified by the counties, but ten county canvassing boards later submitted revised vote totals, correcting what they believed were "obvious errors" in the original tallies. Not all of the changes helped the Republican, but the revised count did put Anderson in the lead by 142 votes.
The state canvassing board was unable to decide who should be the governor -- procedurally they were not able to agree which set of returns to accept. So, Anderson brought the matter to the state's highest court.
Minnesota law allowed the county canvassing boards to correct "obvious errors" and conduct their own count, to be submitted rather than the precinct counts. The Supreme Court found that the errors were all of an obvious nature, which allowed the county canvassing boards to correct them. The issue, though, was one of timing -- could that be done after the county boards had already certified the original result? Could they correct the errors at any time? Or, only before the state canvassing board issued its certified count?
The Anderson Court wrote that
"As long as there is substantial compliance with our laws and no showing of fraud or bad faith, the true result of an election, once ascertained, ought not be defeated by an innocent failure to comply strictly with the statute."
The justices wanted to respect the sentiment expressed in an older decision:
"It is expression of the will of the voters that the law seeks."
The Anderson Court further wrote
"To now hold that the results of this election must be based on the return that everyone concedes is erroneous would be a perversion of our whole election process in the pursuit of strict adherence to statutes that need not be so strictly construed."
It's hard to ignore the irony of what happened in Florida 8 years ago, as you read this -- and it makes it especially maddening to hear the Coleman campaign argue against counting wrongly rejected ballots, or opposing the use of vote totals to substitute for lost ballots.
There is even greater irony when you note that the Supreme Court today focused on whether the Anderson decision survives the Bush v. Gore decision. In fact, the Court wasn't being ironic or sarcastic -- the justices were wondering about the equal protection arguments that informed the Bush v. Gore decision -- whether some counties could conduct some level of review that others did not, especially as it seemed to conflict with their statutory authority.
It should be said that the Coleman campaign isn't necessarily saying these ballots should never be reviewed. They are almost willing to concede that the Franken campaign could get this review if it filed an election contest in court, after the state vote has been certified.
I say 'almost willing to concede', because the Coleman campaign is also arguing that these ballots should be out of anyone's purview. The argument there is that these are not "ballots cast in the election", because they have not been counted and were not included in the county reports. Right now, they are only arguing that this restriction prevents the county board from even considering, much less counting these ballots. I would say, though, that the Coleman campaign would make a similar argument in any later court contest brought by Franken -- only then the Coleman lawyers would say these were not "votes legally cast at the election".
For now, Coleman is only arguing that the remedy is to file an election contest in court, a procedure that one of the justices described as a "nonsensical remedy". That justice, and others seemed much more concerned about whether the Court had the authority to do the opposite of what Coleman seeks -- they were curious as to whether the Court had the authority to order the local canvassing boards to review and count these ballots.
Coleman's great concern is that the county hoards would not use uniform standards for determining errors. Though counsel did not get into specifics, I wrote at length in a diarylast night about the question of how to handle ballots rejected solely because the signatures were not dated. This is a big concern because Duluth indicated that such ballots might account for as much as 40% of the rejections.
One justice flipped Coleman's argument on its head, saying Coleman could always challenge newly counted ballots, in his own election contest. In the meantime, the justice believed that "validly cast" is a clear standard, given that there are only four reasons for rejecting a ballot.
Franken's attorney argued that there is no equal protection problem, for much the same reasons as that justice expressed. He was asked if there were an limits on the meaning of "obvious error". He replied by noting examples, such as registered voters whose ballots might have been rejected by a mistaken conclusion that the voter wasn't registered. Other "obvious errors" would be apparent from looking at the ballot envelope., if the ballot met the 4 requirements.
Ultimately, he argued for an expansive interpretation of the statutory mandate that allows for review of obvious "counting and recording" errors. For Franken, the universe of ballots for this recount is all the ballots, not just those that were originally counted.
With respect to ordering the counties to conduct the count, Franken's counsel contended that this was unnecessary -- that all but one were already to start. The lone holdout, Ramsey County, is just waiting for a firm signal that the effort will not go to waste.
The State Attorney-General's office argued that it was not too late to fix any such errors, and that the local boards could do this -- even though the election manual seems to expressly preclude a review of rejected absentee ballots. So long as the State Board is still meeting, the local boards can submit amended totals.
Finally, Isanti County's counsel stated that the counties' all share in the belief that "all lawfully cast ballots are counted". According to counsel, the local boards are ready and willing to find wrongfully excluded ballots.
Based on what I heard, I expect the Court to reject Coleman's petition, at least in substance. The Court did not even inquire of Coleman's attorney what uniform standards he would recommend imposing on the local canvassing boards. While it's possible the Court could call counsel back to discuss that question, the tea leaves suggest otherwise.
I think there's a good chance the Court will order all of the counties to go ahead with the new review, along with direction to ensure that all ballots excluded due to obvious errors be restored. Despite the reluctance of Franken's counsel to endorse such an order, I suspect the Court will want to foreclose having to revisit the issue due to some recalcitrant localities.
The other issue that arose today was one that had been hinted at since the recount began Tuesday. Duplicate ballots had been set aside due to some concern of Coleman's that had not been elaborated in the public meetings. After the Canvassing Board finished with its initial review of Franken's challenges, they heard arguments on these "duplicate ballots."
The essence of the complaint is this: In a number of counties, the recount by the local boards yielded increases in the total number of votes. The Coleman camp thinks those increases are explainable by errors at the recount.
Apparently, hundreds, perhaps thousands of voters mailed in folded ballots that could not be machine-counted because of some damage to the ballot. In those circumstances, precinct workers were to generate a duplicate ballot, which could be counted by the machine. For confidence sake, they are supposed to mark the ballot as a duplicate, and keep it with the original, which is also marked.
For whatever reason, the numbers of duplicates did not always match up with originals. There are, according to Coleman, excess originals. Coleman's counsel claims that their filings show that the numbers of excess originals exactly match up with the increase in votes in those precincts. I'm trying to understand why there would be more originals than duplicates -- and how there could be more original ballots than original votes, which seems to be Coleman's implication. However, the Coleman camp is claiming the increase reflects double counting, based on mistaken counting of both original ballots and duplicates that were no longer associated with the original. Ultimately, the Coleman campaign is claiming that there are a lot of these votes -- either 150, or perhaps more than 200 such votes, depending on which source you find. It's not clear how much, it at all, this has benefited Franken.
If the Coleman camp is right about how the increase matches up with an excess of originals, they may be correct about the double counting. It does seem that some challenged ballots were marked either original or duplicate, but were not matched with another ballot. The Canvassing Board members were all deeply concerned about the possibility that votes were double counted. The question for the Board was what to do about that.
Ballots that came to the board because of challenges posed immediate challenges. Coleman's counsel insisted that the only the duplicates should be reviewed and counted, because they were the ones counted on election night, In addition, if the Board added any original ballots to the total, they risked validating double counts.
For Franken's counsel, Mark Elias, this was an outrageous argument, which ran directly contrary to what the parties had agreed to at the outset of the recount process. The concern for the Franken camp was that the original ballots were what the two sides had agreed to use because that was where the voter's intent could best be judged.
For the Board, the biggest concern was that they were being asked to judge whether a ballot should be admitted based on factors extrinsic to the face of the ballot. This was, they agreed, an evidentiary matter, that was not within their purview. Rather, this was a subject fit only for a court challenge. This left the Board members perplexed as to how to handle these ballots. They retired for the day without resolving the issue.
Finally, of course, I can't leave this review of the day, without a report and comment on the the review of the challenged ballots. Although the Franken camp has some 300 ballots that they had previously challenged before recently withdrawing their challenges, the Board finished its review of those Franken challenges.
How'd he do? Well, it seems really well. Franken added over 60 votes to his own totals, and Coleman did lose some number of votes to the other column. I don't know how many, and there's no way to know how many of those might have been counted originally for Coleman. Of course, Coleman added over 230 votes to his official total, but that's hardly reason for panic. These were Franken challenges. It stood to reason that most would still result in votes for Coleman. The big news is that it appears Franken fared better than expected, with a net gain of close to 100.
For those craving real numbers: there are two slightly different counts out there, reflecting the challenges decided to date. The Uptake.Org recorded the totals as Coleman 238, Franken 63, Other 114, but the Star-Tribune has the following totals: Coleman 234, Franken 64, Other 117. Both sources agree that 415 ballots were ruled on by the Board, and I can't vouch for which one has the more accurate results.
Still to come: There are 1,000 or so Coleman challenges to be reviewed, the majority of which will probably result in Franken votes. And, there are another 300 challenges which the Franken camp has indicated may be reinstated, as they review how the Board is judging challenges.
What does that all mean? It's just guesswork, right now, but the Star-Trib puts Coleman's current lead at 358, but projects Franken will finish ahead by 275. It should also be noted that there may be some error in the vote totals, if the Coleman camp is right about the double-counting. However, if the Star-Trib's projection is even close, Franken's margin of victory would be larger than the claimed number of double-counted ballots.
Of course, those numbers don't reflect the pending the review of the rejected absentee ballots. If the Supreme Court gives the go-ahead for counting those ballots, the accepted wisdom is that Franken may pick up hundreds more votes. Then again, while the recount phase is moving towards a close by Friday, or early next week, it's entirely possible that the litigation phase is just getting started.
Coleman's counsel, Tony Trimble, was asked if the Coleman camp is just "playing for time", with the possibility that Gov. Pawlenty could name the next senator, beginning on Jan. 6th. Trimble said they're just trying to "get an accurate result". He scoffed, saying he wouldn't "call that playing for time".
Sorry for the interruption. Thank you for your attention. Please resume the teeth-gnashing....