Tomorrow, at 1:00 Central time, the Minnesota Supreme Court will hear oral arguments in the matter ofSheehan, Coleman, et al., v. Ritchie, et al-- Norm Coleman's petition to enjoin the review of wrongly rejected absentee ballots.
Make no mistake about it -- this could be the central drama in the long recount process. Although the Franken campaign thinks it is leading by a few votes, and the Star-Tribune projects a 171-vote victory margin for Franken, there is still great uncertainty surrounding the actual state of the count. The Uptake, a site which has provided excellent coverage that has included live coverage of the State Canvassing Board, currently projects a "'Challenged Adjusted' Recount Margin +89 Coleman."
Immediately after the election, Franken's legal team petitioned the courts to order release of the names and addresses of absentee voters whose ballots were rejected. That showed great foresight, as it led to the current, unprecedented effort to include wrongly rejected ballots, a request which may prove decisive in this election. The Coleman campaign's great fear is that these ballots will win the election for Franken, and this is the primary motivation for trying to enjoin the review of the absentee ballots.
The case at the Supreme Court involves as many as 1600 or more wrongly rejected ballots. The working assumption is that these absentee ballots will favor Franken. Clearly, the Coleman campaign believes this to be true, or they would not be seeking to stop the review and counting of those votes. It is possible that Franken may not need those votes, but that is far from certain -- and Coleman is challenging up to 200 Franken votes they argue were double-counted. What happens at the Supreme Court may well decide who is sworn in as Minnesota's U.S. Senator in January.
I have prepared a brief analysis of what I see as a central issue in tomorrow's arguments (I emailed this to the attorneys on Franken's Motion to Intervene in Coleman's injunction petition. I would hope they don't need me to lay out this argument, but I thought I'd do it, just in case.
At the outset, I should note that I believe that the Coleman campaign will probably be partially successful in its Minn. Supreme Court petition. Coleman would like to put a stop to the review of the rejected ballots. He's arguing that there is no authority to review those initial determinations, until and unless there is an election contest and a court order following certification of the final vote. In light of the opinions by the Attorney General and the State Canvassing Board in favor of conducting that review immediately, it seems highly unlikely that the Supreme Court would decide this point in Coleman's favor.
Coleman's other contention has a greater chance of receiving a favorable ruling from the Court. Coleman is arguing for uniform standards in reviewing rejected absentee ballots, relying on the U.S. Supreme Court decision in Bush v. Gore. The Bush v. Gore precedent is problematic, of course, but the argument on disparate treatment of voters is a seductive one. In fact, seven of the Justices on the Bush v. Gore court agreed on this point. Whatever the overall merit of the decision, the equal protection argument is gaining wide acceptance. It will be hard for the Minnesota Supreme Court to dismiss that concern, and I predict they will grant this part of Coleman's petition.
There is, however, I believe a way make that ruling work for Franken, setting a standard which should work heavily in Franken's favor.
Although there may be a number of grounds for wrongly rejecting ballots, the most important area where the court may act to set standards is with respect to what constitutes a legally sufficiently complete certificate of eligibility. My reading of the law is that there can be no exception for an unsigned certificate, which I believe was the basis of relief sought by the affiant in Franken's original application.
There is, however, a compelling argument to be made in favor of those ballots which contain undated signatures. Although I imagine Franken's legal team has already considered and prepared to address the question, I thought that I might offer my help in the argument -- think of it as an amicus brief, which follows:
To begin with, it is crucial to reject the outrageous assertion made by the Coleman campaign in the petitioners’ filing. The petitioners have argued that
"rejected ballots are not ballots cast in the election."
Although these ballots were not part of the count initially certified by local officials, they most certainly are "ballots cast in the election." Continuing to exclude any ballots that were wrongly rejected would be a violation of each voter's Constitutional right to vote. Further, it would violate the people's collective right to have elections fairly decided, with the declared winner being the candidate who received the most votes, as determined by a review of all legally cast ballots. If wrongly excluded ballots are not admitted, it will undermine public confidence in future elections and seriously devalue the electoral franchise.
Those ballots which were wrongly rejected must be counted. If, as I expect, the petitioners convince the court that there is a compelling need for the court to set a uniform legal standard, the election may yet turn on what becomes of those ballots which were rejected solely because signatures by the voter and/or by the witness were not dated at the time. It is my understanding, from listening to Friday's meeting of the State Canvassing Board, that as many as forty (40) percent of the ballots rejected in Duluth were correct in form, save for the fact that the signatures of the voter and/or witness were not dated. I believe the statute is open to interpretation on this point, but this an issue which the court can readily set out a uniform standard susceptible of easy and consistent application.
The statute prescribes, in relevant part:
Sec 203B.12
The election judges shall mark the return envelope "Accepted" and initial or sign the return envelope below the word "Accepted" if the election judges or a majority of them are satisfied that:
(1) the voter's name and address on the return envelope are the same as the information provided on the absentee ballot application;
(2) the voter's signature on the return envelope is the genuine signature of the individual who made the application for ballots and the certificate has been completed as prescribed in the directions for casting an absentee ballot, except that if a person other than the voter applied for the absentee ballot under applicable Minnesota Rules, the signature is not required to match;....
Undoubtedly, petitioners will argue for rejecting these ballots, on the grounds that the certificates of eligibility were not completed as prescribed in the directions. If the content of the directions had been left entirely to the discretion of county or municipal officials, this might be a convincing argument. There is, however, a statutory scheme for these certificates -- a scheme which must be referenced to give meaning to the statutory requirement for completing the ballot according to the prescribed directions.
Sec. 203B.07 sets out the statutory requirements for the voter directions, as follows:
Sec. 203B.07 Subd. 3. Eligibility certificate
A certificate of eligibility to vote by absentee ballot shall be printed on the back of the return envelope. The certificate shall contain a statement to be signed and sworn by the voter indicating that the voter meets all of the requirements established by law for voting by absentee ballot. The certificate shall also contain a statement signed by a person who is registered to vote in Minnesota or by a notary public or other individual authorized to administer oaths stating that:
(1) the ballots were displayed to that individual unmarked;
(2) the voter marked the ballots in that individual's presence without showing how they were marked, or, if the voter was physically unable to mark them, that the voter directed another individual to mark them; and
(3) if the voter was not previously registered, the voter has provided proof of residence as required by section 201.061, subdivision 3.
There is no statutory requirement for dating the signatures. Nor, is there any obvious authority for county or municipal officers to add any legally operative restrictive requirement. Per Sec. 203B.12,
"[t]here is no other reason for rejecting an absentee ballot."
This language is indicative of the legislative intent to enact a comprehensive statutory scheme.
Though nominally separate, the provisions of this chapter must be understood in concert. These are sequential statues originally enacted concurrently, in 1981. The reference in Sec. 203B.12 to the certificate "directions" must be a reference to the requirements set out for those "directions" within the earlier sequenced provision, Sec. 203B.07. Because it is a comprehensive scheme, it would do great violence to the legislative intent to impose additional requirements not found in the statute. The statute cannot be understood to give any local officials the authority to impose any additional requirements for absentee voters to satisfy.
Therefore, there can be only 4 statutory requirements for sufficiently completing the eligibility certificate. The voter must sign and swear to the statement that the voter meets all of the requirements for voting by absentee ballot. The three other requirements relate only to the witness' signature, but neither the voter nor the witness is under any statutory compulsion to date their signatures.
Failure to date the signatures does not give legal cause to reject the ballot. Again, as set out in Sec. 203B.12, "[t]here is no other reason for rejecting an absentee ballot." If the county judges were to give reject a ballot for a reason such as an undated signature, it would be giving legal effect to a requirement that is beyond the statutory scheme. The judges would be adding the requirement of a datum that has no basis in the statute.
In using the unequivocal language that "[t]here is no other reason for rejecting an absentee ballot", the legislature clearly stated its intent that only the reasons expressed in the statutory scheme were sufficient to invalidate a voter's absentee ballot. Because the statue clearly sets out that there is no other reason for rejection, giving legal effect to conditions that are over and above those set out in the statute cannot be acceptable. It would be a violation of the express language, as well as the clear legislative intent embodied in the statute. As noted above, this is a comprehensive scheme, with no room for local officials to create additional hurdles for absentee voters, nor additional reasons to reject absentee votes.
This should be contrasted with the language found in Sec. 203B.24, which applies to ballots submitted by overseas or absent military personnel. That provision provides, "a ballot shall not be counted if the certificate on the return envelope is not properly executed. In all other respects the provisions of the Minnesota Election Law governing deposit and counting of ballots shall apply." In this instance, the legislature chose noticeably different language, which would disqualify the ballot "if the certificate on the return envelope is not properly executed." The reason for this should be obvious. The requirements and design of that certificate are created by and under federal law, under authority given to a Presidential designee. Minnesota law cannot vary those requirements to render any portion of the certificate superfluous..
Sec. 203B.12 uses different statutory language. It does not refer to proper execution of the return envelope certificate. Rather, the Minnesota legislature set out the requirements for the certificate of eligibility for those not using the federal ballot -- for the average, civilian Minnesota voter. Failing to meet those requirements invalidates the ballot, but there can be no additional requirement beyond those found in the statute. Some voters may not have completed all the putative requirements of an envelope certificate. With respect to any certificate provisions that are not prescribed in the statute, however, these cannot be the basis for rejecting the ballot.
It is possible that the Supreme Court may divide up the arguments. They may not take arguments on the possible standards until after they've decided whether they ought to issue any. If the Court decides to tackle all the issues in one shot, pay attention for arguments on this point. Franken will probably win the election, if his attorneys can persuade the Supreme Court to issue an order that mandates accepting those ballots rejected because the signatures were not dated.