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(cross posted at

9:25 AM CT: The board is discussing the possibility of going back into the pile of challenges to re-review some questionable ballots.  There are apparently 16 ballots that were marked with an X;  from these 16 ballots, the board discerned that the X was written in a "different ink," or on a different plane (above or below another mark) on the ballot.

9:31 AM CT: The board is now considering whether to actual "pull" and review those ballots.  Apparently it would result in reviewing 40 total ballots due to the comparisons requested; the clerk estimated that the review would take about half an hour.

9:33 PM CT: If they review those 16 ballots, as requested by the Coleman campaign -- which would require 40 total ballots to be reviewed -- the Franken campaign has argued that they also have a select group of ballots they would like to have re-reviewed.

9:35 AM CT: An hour long recess is forthcoming as they sort through the challenges and "pull" the 40 ballots in question.  Recess until 10:30 AM CT.

9:47 AM CT: On a side note; Coleman counsel, Fritz Knaak was just semi-complaining about the recess. After the recess, Mr. Knaak preceded to the back of the room to get his get something in his laptop bag.  On the way, a member of the audience asked Mr. Knaak if "[he] got paid" for waiting.  Mr. Knaak responded by saying, "wait, its what lawyers do."  At the same moment in time, Franken counsel, Marc Elias was talking with a group of about four people who were laughing.  Bottom line: Knaak is nervous and Elias seems at ease.

10:32 AM CT: Meeting reconvenes.  The Coleman campaign has asked the board to compare their decision on a challenged ballot to that of other challenges.

10:33 AM CT:  A motion is required to even begin reconsidering a ballot.

10:39 AM CT: The first two challenged challenges fell without a second motion.

10:45 AM CT: The board has yet to acknowledge a desire to reconsider any of these challenged challenges.

10:52 AM CT: The board still has not seconded a motion to reconsider their decision.  A lot of the challenges in question have pertained to unanimous decisions by the board.  I'll post the document containing the specific ballots later.

10:57 AM CT: All 40 ballots were reviewed and nothing happened.  The board then sarcastically remarked that they would not acknowledge similar challenges from the Franken campaign.

10:59 AM CT: Recess until 9 AM CT on December 30th.  They will validate their challenge counts.

The Supreme Court will reconvened at 2 PM CT to tackle the issue of potenetially double counted ballots.  Let's take a look at the composition of the Minnesota Supreme Court:

Justices are elected to six-year terms unless a mid-term vacancy occurs, in which case the governor appoints a replacement to finish the term. Justices have a mandatory retirement age of 70.

Source: Wikipedia

Chief Justice Eric J. Magnuson: (Member of the Canvassing Board)

Rise: Appointed by Republican Tim Pawlenty, 2008

Estimated Party Affiliation: Conservative Bio

Justice Alan C. Page:

Rise: Elected, 1992

Estimated Party Affiliation: Liberal Bio

Justice Paul H. Anderson:

Rise: Elected, 1994

Estimated Party Affiliation: Liberal Bio

Justice Helen M. Meyer:

Rise: Appointed by Independent Jesse Ventura, 2002

Estimated Party Affiliation: Independent Bio

Justice G. Barry Anderson:  (Member of the Canvassing Board)

Rise: Elected, 2004

Estimated Party Affiliation: Conservative Bio

Justice Lorie Skjerven Gildea:

Rise: Appointed by Republican Tim Pawlenty, 2006

Estimated Party Affiliation: Conservative Bio

Justice Christopher J. Dietzen:

Rise: Elected, 2008

Estimated Party Affiliation: Conservative Bio

The two justices who are member of the canvassing board must abstain from participating, from the bench, on any item related to the recount.  That leaves five judges, two liberals, two conservatives, and an independent to decide on the double ballot issue.

Here's an audio recap of the recount events that took place today.  The audio isn't great, but the content is still discernible, despite some obvious background artifacts; the time is presented as HH:MM:SS.

The first recording comes from a pseudo press conference conducted with two members of Coleman's legal counsel, Tony Trimble and Fritz Knaak:

Coleman Counsel's: We see the number as much better from our point of view.  We'll know more after we've had this dialogue with the Secretary of State.

Reporter A: What's your internal count at?

Coleman's Counsel: Our internal count is a, something we don't share.

Reporter B: Why is that?

Coleman's Counsel: Because we don't, as a matter of policy; very early on we decided.

Source: (*.wav, 00:07:28)
Video: via (00:07:45)

There are essentially only two reasons why they don't want to reveal their internal count.  The most likely scenario is that their internal numbers actually show that they are trailing; and secondly they simply do not have an internal count.  I find the second option very unlikely, basically impossible.  The campaign has demonstrated no restraint when it comes to declaring victory.  I think if they thought they were winning, we would all know that they thought they were winning.  Hence because they are not stammering about their lead, they are in fact, not in the lead.

The next event was the press conference conducted by Secretary of State Mark Ritchie:

Reporter A: Is it almost certain that there is not going to be a winner certified by January 6th, when they're supposed to be sworn in? Is that being taken into consideration?

Sec. Mark Ritchie: Absolutely not a consideration. I have until November 2010, personally.  The 5th and 6th [of January] we have scheduled from 2:00 to 5:30 both days [for the canvassing board to meet].


Reporter B: Can a winner be certified by January 6th?

Sec. Mark Ritchie: If the stars align...Our top priority is accuracy and transparency.  And the timing thing is just not our issue. You know I want to put an underline: we don't care as long as it's accurate and is done in a transparent way.

Source: (*.wav, 00:26:10)
Video: via (00:09:19)

Finally the MN Supreme Court met to decide, once and for all, whether the case made by the Coleman campaign regarding the supposed inclusion of doubly counted ballots should be reexamined.

Supreme Court Justice: Where have you shown to us, that there is, there are [more] votes counted in any given precinct than the number of voters as would be determined under §204C.20.

Source: (*.wav, 1:04:38)
Video: via (01:03:47)

I personally find it very likely that the petition, as put forth by the Coleman campaign, will fail; but I am not a great supreme court mind.  My verdict is based entirely on my interpretation of the proceedings.

The Supreme Court has ruled:


1. The petition of Norm Coleman for relief from the December 19, 2008 decision of the State Canvassing Board rejecting challenges to unmatched original damaged ballots be, and the same is, denied.  But our denial of the relief requested does not constitute a binding determination in a subsequent election contest proceeding.

2. Petitioner's motion for a temporary restraining order be, and the same is, denied as moot.

Dated: December 24, 2008


Alan C. Page

Associate Justice

MAGNUSON, C.J., and ANDERSON, G. Barry J., took no part in the consideration or decision of this matter.


This appears to be good news for the Franken campaign, but they are likely to remain apprehensive over the following line from the ruling:

"But our denial of the relief requested does not constitute a binding determination in a subsequent election contest proceeding."

Unless I am mistaken, which I very well could be (I'm not a legal expert) why couldn't the Coleman campaign just take their petition to an "election contest proceeding?"  This ruling appears to be good news for Franken, but I'm not certain the issue is actually resolved.

From a legal standpoint Coleman is helpless, at least until a winner is certified; as an "election contest" implies contesting the result of an election after a winner has been certified.  The State Canvassing Board could require that each county double check their count to try and preempt any such election contest, but even then an election contest seems likely.

Coleman appears as though he will contest the certification if it does not goes his way. Fritz Knaak the lead counsel for Coleman had this to say in response to today's supreme court ruling:

The decision by the Minnesota Supreme Court today virtually guarantees two things in this recount.  One: it ensures that there will be an election contest because Minnesotans simply will not support an election as close as this being decided by some votes being counted twice. Two: this ensures that no certificate of election will be issued due to an election contest inevitably being filed, leaving Minnesota without two sitting United States Senators on January 6th.


Originally posted to Vote For America on Wed Dec 24, 2008 at 01:26 PM PST.

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