Today was a big day in the Franken-Coleman "election without end". This afternoon, the Minnesota Supreme Court heard oral arguments on Norm Coleman's petition and injunction request. Coleman is seeking an order for a new, partial recount, to prove/disprove his claims regarding double-counting of ballots. With Al Franken leading by about 47 votes, the Coleman campaign is looking at a Hail Mary pass -- a game-changer. If a court agrees there have been illegally double-counted ballots, that could be the game-changer Coleman seeks.
If you want an explanation and analysis of what's at issue in this case, please read the diary I put up yesterday, MN-Sen: Clearing the Legal Thicket. Here, I'd like to dive right into today's arguments.
So, how did today's oral arguments go?
It's fair to say that Coleman's counsel, Roger Magnuson, did not get a friendly reception. The only Justice not to give him a real grilling was Justice Alan Page. Page is the justice who penned the dissent last week, criticizing the 3-2 majority for not simply ordering that wrongly rejected absentee ballots be counted.
Coleman has filed a "show cause" petition and a motion for an emergency TRO. Four of the five justices hearing this case were desperately seeking proof of double-counting, rather than the circumstantial, deductive argument Coleman is offering. The most compelling evidence would be proof that more votes were counted in the recount than were actually cast on Election Day. Neither campaign, though, has access to the voter rolls, so there is no way to make that argument, definitively.
In the absence of hard evidence of double-counting, the justices wanted to know why this issue should not be left for later election contests before trial judges, where proof could be developed and offered. The justices also were troubled by Magnuson's inability to address the problem of uncounted "original" ballots.
Franken's counsel, Bill Penelovitch further complicated the issue for the Minnesota justices. He raised as a defense, the fact that the parties had agreed to rules for the recount process, rules which he claimed the Coleman campaign is trying to vitiate in this action. Moreover, he pointed out that the recount rule, Rule 9, did not automatically substitute originals for duplicates.
"There are precincts out there, where no numbered duplicates were found, and there were originals, and those originals were not opened."
Although he was loathe to mention the names of
"two former candidates for Presidency",
Penelovitch did raise the specter of what Justice Page called the
"dreaded equal protection problem".
Justice Page set him up by asking if Penelovitch agreed that there are only 25 precincts at issue. Penelovitch took that ball and ran with it.
"If you're going to change the rule, you can't change it for 25 precincts. You've got to change it for 4001 precincts. I don't see how else you can do that and be fair."
I'm not sure how that point affected the Justices of the Court, but it definitely left an impression. It left the Justices struggling to craft a remedy here. I think Penelovitch wanted to scare the justices off of opening a can of worms, but he may have had the opposite effect, where they're now even more troubled by the current vote totals.
Penelovitch made one argument that was not at all well received. Justice Anderson was particularly disturbed by the Franken campaign's argument that Coleman has permanently waived a right to raise this issue. It seemed that Justice Anderson was particularly anxious to be told the Court could deny Coleman's request, with some assurance that Coleman would get a rehearing before a trial judge, if the candidate files an election contest. Penelovitch would not budge, which seemed not to be the answer that Justice Anderson wanted to hear.
I think all five justices are inclined to prefer that this matter go forward before appropriate local trial courts. However, they were definitely shaken by the prospects raised by Franken's attorney, who was determined to paint a "parade of horribles," and determined not to give an inch. They would like to deny Coleman's motion -- perhaps even unanimously -- but, they're also concerned with getting the vote count right. Even though there was an agreed-upon rule for the recount, they are concerned that this rule is distorting the result. As Justice Anderson noted "the stakes are high here".
If they do order some relief here for Coleman, it doesn't seem likely that they will be satisfied with Coleman's "cherry-picked" precincts. Each and every justice, in their own way, expressed concern that a fair, just and accurate result be reached. None of them were comfortable with the idea that there might be double-counted ballots. At least one justice, Justice Anderson, was appalled by the suggestion that Coleman was legally estopped from ever raising a contest to such an irregularity.
However, none of the justices seemed to accept Coleman's position that the Franken campaign already had a chance to raise their own concerns and made a small number of challenges - thereby waiving any claims toward like issues in other precincts. For, its part, the Franken campaign's counsel reiterated a claim the campaign has made before -- that they were not allowed to record challenges in some precincts.
Where will the justices come down in this case? I think their judicial instincts are leading them to reject the petition/motion, leaving open the prospect of later election contest. However, there is a decent chance that the Justices will not want to create an issue for later election contests. Their prior ruling on the wrongly rejected absentee ballots revealed an inclination to resolve outstanding matters without forcing the parties to file dozens, or even hundreds of lawsuits.
At this moment, I suspect they're trying to choose between two options. Rejecting the petition without prejudice, allowing Coleman to challenge this later, in trial courts; or granting the order, in part. The justices might choose to grant that part of Coleman's request which asks recount officials for the 25 precincts to attempt to reconcile the number of votes with the number of voters.
If those numbers showed there was an overcount of votes, all bets would be off. At that point, I suspect, the justices would order re-argument on what remedy is most appropriate. I don't believe they would grant the Coleman camp's initial request, to restore the Election Night/election tape totals. My best guess is that they would dispense with Recount Rule 9, and require each precinct to do a reconciliation that might involve counting any uncounted ballots, and identifying any unmatched originals or unmatched duplicates. It sounds very complicated, but this is also one reason why the Supreme Court might not want to leave this for a bunch of trial judges to work through, individually.
As I wrote above, I think the likeliest vote here is a rejection of Coleman's petition. This might even be a unanimous vote, which would be easier to sell to skeptical conservative voters. Having said that, I think the justices are mindful of what happened in Florida, in 2000. They don't want to reject any claim of irregularities. It is possible that they will order some extraordinary review, to determine whether some double-counting has occurred.
At this point, I'm not sure which outcome will produce the bigger circus. I don't see Coleman conceding without a determination about double-counting -- either by election judges, or by trial court judges. This isn't likely to end any time soon.