Let's start out with a little celebration. The headlines this past weekend read: Democrat Al Franken opens first lead in Minnesota Senate race. Finally, Franken now has the most votes, and he's likely to see that lead stretched out, when the wrongly rejected absentee ballots are considered.
Minnesotans should be proud of the process and the way their public officials have managed it. As Secretary of State Mark Ritchie said, this process "has been incredibly accurate, and incredibly fair and transparent". Ritchie boasted that
"[t]he state can celebrate, and the nation can heal from the mess in Florida, where the recount was stopped."
Democrats may have found a new star in SoS Ritchie. I have to say he has come across as efficient and scrupulously fair. One little story about the kind of guy Ritchie is: After Friday's press conference ended, Ritchie thanked everyone. Before he left the podium, Ritchie said
"Somebody left a little recorder here last night..."
This was the act of a thoughtful and humble man -- just the kind of amiable, grounded guy you expect to find in Minnesota.
As for the numbers, Democrats have to thrilled with the current numbers, with Franken finally in the lead. No one can be 100% sure what those numbers really are, since there are some more ballots to be reviewed Tuesday by the Canvassing Board -- but it's cause to celebrate. Not only is he in the lead, but his lead is larger than what the campaign claimed prior to the Canvassing Board session. A four (4) vote lead appears to have grown to 48 votes, if the Star-Tribune's count is accurate. As Franken's lawyer, Mark Elias, said, "it has grown" during consideration of the challenged ballots.
Now for the rough stuff. This isn't over yet, and the Coleman campaign added a new, if not entirely unexpected wrinkle, by once again turning to the Supreme Court for help, filing a new petition which reflects the Coleman campaign's argument that some ballots were double-counted. I've got a lot to say on this (I feel like apologizing for the final length of this diary - I hope you all get through it), but first I want to wrap up the other big legal issue: last week's Supreme Court fight over counting wrongly rejected absentee ballots.
Franken's attorney is preparing to move forward with the negotiations regarding the process for determining which ballots were wrongly rejected. The Franken campaign already has affidavits from 200 of these voters, but estimates are there may be 1600 of those. There will be some sticky issues. I've written before that I expect a battle over what to do about ballots with undated signatures. As more facts come out, it seems that there is more than 5 categories. The State Canvassing Board had requested that the local canvassing boards separate ballots into 5 piles. One for each of the statutory categories reflecting the reasons the ballots were rejected. The 5th pile would be ballots that were wrongly rejected for one reason or another. It has developed that there is another category -- deemed 3A. Ballots in the third pile (#3) came from voters who were not registered to vote and did not include a completed registration card in the outside return envelope. The so-called 3A ballots seem to contain cards within the secured envelope for the ballot. The parties may end up fighting about how and whether to deal with the 3A ballots -- I'm guessing that there will be over 100 of those, projecting from current numbers.
All in all, it looks like the absentee ballot review should be a respectful process. Both sides are publicly maintaining that they expect to benefit when those votes are counted. After the arguments, I wrote a diary here predicting that the Supreme Court would order the local canvassing boards to go through this process, but it was not clear to me how the Court would ensure that the various county and municipal boards followed the same standards. They did me one better, by not ordering the boards to do really anything -- yet. Instead, they've ordered the two campaigns to come together and agree on a process that would set up uniform standards. I guess that's why they're Supreme Court justices, and I'm not. While there is still a good chance that the parties will fail to substantially cooperate, I think that's probably not going to be a huge problem. In any future litigation, both campaigns want to be able to claim the high road.
The bad news for the Franken campaign has to be the new Supreme Court petition from the Coleman campaign. The Coleman campaign is trying to create a controversy and undermine the recount results by suggesting that there has been double-counting of ballots, perhaps hundreds of ballots. Coleman's attorneys claim they have
"130 double-count votes that we know of right now."
Franken's election counsel, Marc Elias, responded, saying
"We're leading because more people voted for Al Franken than Norm Coleman, and no amount of strategizing is going to change that."
Unfortunately, that outcome is not entirely certain, given that Franken's lead is probably less than 50 votes -- at least, pending review of the improperly rejected absentee ballots. In fact, the Star-Tribune is reporting tonight that its analysis gives Franken a lead of 48 votes.
It does seem that a great deal of confusion surrounds the question of duplicated ballots, and that the statutorily prescribed procedures were not followed. Duplicated ballots are made primarily in two circumstances. Absentee ballots that come by mail are folded, and may be unreadable by the machines, due to damage. Other ballots come via email, and these are printed on paper that is not readable by the machines. On some occasions, a voter on election day produces a ballot that has been damaged, and may be given a ballot that becomes labeled a "duplicate' rather than merely destroying the original and giving the voter a new ballot to complete -- however, it is believed that nearly all of the duplicates were made for absentee voters.
Poll workers are supposed to clearly label both "originals" and "duplicates", and generate corresponding serial numbers to match the original "proofs" with the duplicates that are counted by the machines. The originals are to be set aside in envelopes, so that they are not mixed in with the counted regular ballots. Unfortunately, it appears that many precincts did not get the process right. There are unmatched originals and/or duplicates. In some cases, there are whole sets of originals, but no corresponding ballots marked duplicates.
During the recount, a number of these ballots were counted, though it seems not all of them were. In precincts where these ballots were counted, the Coleman campaign has noted that recount totals were higher than the election day totals -- in some cases the increase corresponds to the number of these unmatched ballots. In Coleman's filing, his legal team contends that this is evidence that there is double-counting. In other words, there must be unmarked duplicates that were counted in both counts, but the vote totals went up in the recount, because both the originals and the unmarked duplicates were counted in the recount.
It's a disturbing possibility. The Canvassing Board agreed that this is a serious concern, and should be investigated. However, the Board thought it could not engage in that kind of fact-finding. Most of the members of the Board were not prepared to make the logical leap the Coleman camp advocated, to conclude that some ballots were double-counted. As the Franken campaign urged, the Canvassing Board has rejected most of those challenged ballots, as they could only judge the ballots the local boards sent them. There being no way to determine from the face of the ballots that double-counting occurred, the State Board is prepared to count them all. Apparently, a few challenged ballots of this kind remain in the still unreviewed "blue" folder, but there are "special circumstances" that set these challenges apart.
The Coleman campaign's argument has inflamed passions from his supporters who are accusing the Franken campaign of wanting to steal the election, because they are insisting on counting these ballots. They are waging both a legal battle and a public-relations fight. As Coleman lawyer, Tony Trimble, stated after Friday's Canvassing Board meeting,
"They know these are double votes that are occurring.....This is their attempt to pull in more votes that shouldn't be there to narrow the gap. Franken trying to gain yards, votes."
The evidence offered by the Coleman campaign certainly has raised doubts about the legitimacy of the recount total, but the Franken campaign has offered a considered and plausible alternative explanation for many of these supposed double-counts.
In essence, the Coleman campaign argues that if there are ballots marked "originals" or uncountable ballots in an envelope marked "originals', there must have been duplicates created and counted. Therefore, if the "duplicates" cannot be identified now, the error must be that these duplicated ballots were not properly marked. They presume those ballots are mixed in with the regular ballots, which would create double-counting when unmatched originals are counted.
In response, Franken's attorneys are arguing there is absolutely no real proof that double-counting has occurred, or that it is about to occur, when the State Canvassing Board rejects Coleman's challenges. Rather, they are arguing that many of these "originals" (and possibly even some of the duplicates) were never counted -- so, the election night totals did not reflect these votes.
Based on Coleman's own filing, it appears that, in at least two instances, election officials believed that some ballots were not counted on Election Night -- originals were found, but there is no indication that they were duplicated. Franken's attorneys argue that if no corresponding duplicates have been found, there is no reason to conclude they were created. If no duplicates were made and counted on Election Night, it was necessary to correct the oversight by counting these ballots in the recount. Thus, Franken's legal team argues, it is neither surprising nor suspicious that the recount totals increased by the exact number of the unmatched originals.
Of course, this question comes up in different ways in different precincts, and no single explanation can account for all of the incidents and apparent discrepancies. In a number of these cases, Franken's attorneys were not even permitted to raise their own challenges with respect to questionable original/duplicated ballot issues. They feel blindsided by Coleman's petition, because the parties agreed prior to the recount to rely exclusively on originals. This last-minute argument by Coleman seems a reversal of that agreement.
Basically, the two parties are arguing over a presumption. Coleman's attorneys argue that we should assume that election officials duplicated and counted all originals on Election Night, even if they might have overlooked the proper procedures that would have safeguarded against problems arising in the recount. Franken's attorneys are implying the absence of evidence either way means it's equally possible that the errors on Election Night were in not duplicating and counting numerous ballots. According to Franken's legal reply brief:
"In fact, the difference between the number of ballots counted in the Recount and the machine tape totals is equally consistent with the the theory that no duplicates were ever made of Non-Matching Original Ballots."
In oral arguments Tuesday afternoon, the Supreme Court will confront a number of questions. One obvious one would be what remedy to order. Coleman's attorneys have argued that they see see two fair outcomes to this dispute.
"Either precincts go back to election night totals...and then the double voting would not occur....or counties take that on themselves to complete."
Of course, each incident was factually different, and a blanket rule would have the benefit only of avoiding trying to hash out what really happened in each case. Ordering all precincts, or even just the questioned precincts, to report their original totals would create a uniform standard that would foreclose further litigation, but it might not be any more accurate or fair. Factual inquiries, for their part, might prove inconclusive, leaving the question of a just resolution up in the air.
The Minnesota Supreme Court might be inclined to pass on the petition, forcing Coleman to contest the vote after certification. Kicking the can down the road, as it were, would move the question to a more appropriate forum, where both campaigns could produce testimony from actual witnesses. As I will argue at the end of this absurdly long diary, I think there is a fairly easy way to settle the question. On the other hand, there's no reason to believe that setting the stage for further litigation will really serve the public's interest.
In its decision on absentee ballots last week, Minnesota's high court already showed a willingness to go beyond the strict requirements of Minnesota's statutes. The Court ordered the two campaigns to meet with all the local canvassing boards and work out a procedure for counting wrongly rejected absentee ballots, even though the majority claimed it was beyond the statutory scope of the local board's normal review powers. It would not be surprising to see the Supreme Court create another makeshift solution that was aimed at avoiding myriad election contests across the state. The Court has to be concerned that the final tally be viewed as legitimate, but they must also be cognizant that no one wants months of litigation, pulling in hundreds of poll workers to testify.
What, if any, legal precedent is there? Coleman's attorneys are relying on a nearly 30-yr. old case, from Indiana. This is not reason enough to dismiss the citation. Back in the day, I prepared a legal brief citing Florida decisions in a New York case that delivered Gov. Pataki's first legal defeat. New York had never confronted a challenge to emergency rule-making, but Florida had. Fortunately, the Florida precedents supported our argument. Out-of-state decisions can be very persuasive, even when they're not controlling precedential authority.
There are other decisions which might also support the reasoning that concerns of fraud and double-counting justify rejection of the unmatched ballots now in question in Minnesota. One Illinois court threw out two decisive ballots in a Board of Education race, for failure to properly label the duplicate ballots, even though there was no problem matching them to the originals. That said, none of the cases are exactly on point, including the Indiana case which Coleman wants the Minnesota court to follow. The Indiana case involved the state Supreme Court overruling a trial judge who had decided to count unmatched originals that local election officials did not count.
One way the Supreme Court may avoid confronting this thorny issue is to rule that the Coleman campaign is prohibited from even raising this issue at this time. Franken's attorneys are arguing that Coleman's campaign helped create this uncertainty during the recount, by insisting on a "strict adherence" to the agreed upon rule that originals would be counted in all circumstances. According to the Franken campaign's filing, Coleman's representatives insisted on this, even in instances when no matched duplicate could be found for original ballot votes for Coleman.
Surely, the Supreme Court would prefer first to see all the votes counted from among the wrongly rejected absentee ballots. If the margin is big enough, the Court could dismiss this petition as moot. No doubt, however, the justices will be feeling pressure to rule quickly, even though they have previously given the local boards until December 31st to complete the absentee ballot review. The Court might also seek to speed up the contest process by ordering immediate consideration of all these incidents, possibly by a single court. The Court might also require the local boards to review all of their ballots to see if possibly unmarked duplicate ballots might still be identified and matched to originals.
Of all these possibilities, the two simplest would be to throw out any unmatched originals (there would be no reason to throw out any unmatched duplicates), or to rule that the Coleman campaign is now estopped -- blocked from pursuing this issue, because of prior support for the process. I had a strong feeling after last week's argument that the judges were leaning to creating a process to count wrongly rejected absentee ballots. Even going into the argument, it seemed hard to imagine that the Court would issue a ruling that would cutoff the counting of uncounted legally cast ballots.
In this case, it's much hard to say where the equities lie. No one wants to have the legitimacy of an election forever questioned because concerns of double-counted ballots were disregarded. Nor does anyone want to create a situation where the Coleman campaign will want to litigate the question. I doubt they will order all precincts to go back to the original result, but it is possible that they will want to clear up concerns regarding the 130 votes that Coleman is questioning.
On the other hand, the justices wouldn't want to throw out votes that should be counted. Without clear evidence that double-counting has occurred, it seems hard to understand how the Court would justify any order that upsets the Canvassing Board's totals.
The Minnesota Supreme Court could point to the breaches of required Election Night procedures, and announce a regretful decision to risk throwing out valid votes as a necessary prophylactic against future fraud. That decision, however, would be making a decision that would be better left to an election contest. Local election workers might have made mistakes on Election Night, and local canvassing boards may have made errors in the recount which may have produced double-counting of some ballots, but that remains to be proven. Ideally, this should be left for a trial court to determine in an election contest action. Discarding already counted ballots now would seem to violate what the Court is empowered to order at this stage of the proceedings, but the justices have already done that once.
In its Supreme Court petition, the Coleman campaign argues that
"if the Unmarked Duplicates and the Non-Matched Original ballots are all counted (as happened here), the total ballots counted during the Recount will exceed the numbers of persons who voted in those precincts on Election Day."
If the Coleman campaign could point to a precinct with more recount votes than Election Day voters, there would be no denying that some double-counting has occurred. There could be no other reasonable explanation for such a discrepancy. The Franken campaign's opposition brief merely asserts
"[t]here is no supporting evidence for this allegation."
Still, this makes me wonder why the Coleman campaign hasn't pointed to a single precinct where this anomaly has occurred. Moreover, my brain my be a little fuzzy these days from lack of sleep, but it seems to me that the voter rolls would provide an excellent check as to whether there has been double counting. It should be fairly easy to establish a strong likelihood one way or the other as to whether double-counting has occurred.
Unless my logic fails me, it seems if one were to add up for each recounted precinct, the recount number of Franken votes, Coleman votes and "other" votes (including 3rd party, independent, write-ins, undervotes, overvotes and spoiled ballots), the number should exactly equal the number of voters in that precinct (voters signing the rolls, previously unregistered voters taking advantage of the state's same-day voting, and absentee voters).
In mathematical terms: {where O is the universe of all ballots not counted for Franken or Coleman} If Franken votes + Coleman votes + Others = Voters (on Election Day), then P = 0 (where P is the possibility of double-counting. (Briefly: If F + C + O = V, then P = 0).
As F + C + O > 0, then the value of P approaches 1 (or 100% chance that double-counting occurred).
There might be a tiny number of voters that left the polling place, after signing in, without turning in their ballots to be counted, but it's not likely to be anywhere close to the numbers that Coleman is arguing were double-counted votes. If there was double-counting, it should be reflected as recount votes in excess of the number of voters.
So, a trial court could fairly easily rule out the possibility of double-counting, assuming the Coleman camp is wrong in its argument. Alternatively, if this double-counting has occurred, it should be reflected in precinct recount totals. The number of recount votes must exceed the number of voters, or, quite simply put, the double-counting did not happen. Moreover, it might be equally possible to validate the alternative theory advanced by Franken's legal team. If there were uncounted ballots on Election Night, there should have been fewer votes tabulated that night, than the number of voters recorded as voting. It might even be possible to fairly conclusively establish all this after the State Canvassing Board releases its final accounting this week.
My best guess -- and it can't be more than that now -- is that the Court will find it cannot rule in Coleman's favor, without hard evidence supporting his campaign's claim that double-counting has occurred. The justices will vote to kick the can down the road, hoping that Franken's lead will grow in the meantime -- grow to a number that is larger than the 130 votes Coleman claims were definitely double-counted.