I have been a fan, but not a fanatic, of Al Franken since I first saw him on SNL. His partner and I have the same name and I couldn't miss seeing my name on the TV on Saturday nights.
I have been obsessed with the recount and court challenge to the point of creating my own spreadsheets with every piece of data available on the recount (1MB) and challenges (340KB) from the SOS. I must have looked at every challenged ballot at least 5 times. I have watched every live event The Uptake has produced since Nov 5th.
I will begin treatment once this is over.
Back to the point of the diary. Team Coleman is loosing ground in this battle, and the cavalry they're waiting for has attacked his side every time they've made an appearance on the battlefield.
Force Coleman lost ground because of three major issues last week. In the last few days he gave up on the following.
Ramsey Maplewood P-06: This is the precinct where 177 171 168 ballots (official ballot differential) were found in a pickup truck someone's trunk the ballot box the tabulating machine (from testimony of Jim Gelbmann) which increased Franken's lead by 37 votes (final recount number). These are part of the current 225 vote lead. Coleman's wanted the canvased numbers used here but this would have conflicted with their demand to throw out the canvas numbers in Hennepin Minneapolis W-3 P-1 where he wants the canvas numbers thrown out (133 missing envelope 1 of 5).
Ramsey St. Paul W-3 P-9: This got less attention then Maplewood but there were 18 more ballots counted in the recount after the ballots jammed in the tabulating machine (Mansky 12-4 letter, page 125 of Coleman's Election Contest) and weren't counted on election night. This increased Franken's margin by 16 votes during the recount.
The ECC panel issued an order Friday dismissing both of the claims above with prejudice so that is the end of those claims and the 53 Franken votes Coleman had hoped to take away will stay with Franken.
Peterson Intervener's: This started when 64 (30 admitted Franken) voters followed the established procedure and asked the Minnesota Supreme Court to order the counting of their absentee ballots. This has been whittled down to 61 voters since 3 voters learned their ballots were counted with the wrongfully rejected absentee ballots. (3 min mark of video). Franken's forces did not object to this and Coleman's forces lifted their objection Friday (26 minute mark in above video). I will presume all 61 of these are Franken votes since this actually started when Franken was still behind and his forces were encouraging rejected absentee voters to get their votes counted.
Since no party objected to the counting of these ballots the ECC panel should allow these in (+61 Franken). Coleman will try to use the counting of these as precedent toward counting all the absentees he wants in, but I expect the judges will rule that like the improperly rejected absentee ballots, the lack of objection was the standard under which these were counted and their similarity to other uncounted absentee ballots is not relevant to the decision relating to the counting of the others.
Issues still unresolved:
The Kennedy Seven: Seven voters represented by Bruce Kennedy had their Motion for Intervention heard Friday afternoon by the ECC Panel. I expect the Kennedy Petitioners will have their votes counted. Since we know one of Coleman's bleeding heart witnesses from Tuesday was part of this group and Franken's forces are objecting to this group's intervention I expect these votes to go to Coleman (+7 Coleman).
Coleman's filing: Coleman's forces intentionally left a whole universe of wiggle room in their initial filing so they could add more issues, but I am going to address the specific ones I can find with as much legally supported documentation as I have found. Unlike Coleman's forces I will not present newspaper clipping as evidence (Coleman's forces liberally sprinkled newspaper reports throughout their filing).
Potentially Wrongfully Rejected Absentee Ballots (PWRAB)(Page 4 Paragraph 10): This started in paragraph 10 of Coleman's filing as the 650 ballots Coleman wanted re-reviewed during the wrongfully rejected absentee ballot review which wasn't allowed because Coleman was late presenting the list to the SOS by 10:00 the morning before the review began. In the following paragraph the universe of PWRAB's began expanding and has expanded to the point that no-one knows the size of the universe. Coleman's forces want to create categories of rejected absentee ballots and persuade the ECC Panel to allow the opening and counting of those ballots since Coleman can prove some of the ballots in those categories have been and should be counted. In my conclusions section I will put on Salomon's robe, which I keep in the closet, and decide for the panel how to deal with these.
Force Coleman kindly provided some examples of PWRAB's in his filing but those are unusable now that Franken's team proved that many of Coleman's copies were bogus. I will still take advantage of that to show that Coleman's entire case is bogus.
The SOS's office made available the preliminary results of sorting rejected absentee ballots and I will use those numbers to estimate the percentages and potential numbers of rejected absentee ballots for certain categories throughout this essay.
Force Coleman's examples begin on page 40 with ballots which were not counted but were marked accepted. Ramsey County's Election Director Joseph Mansky testified that where the county has an absentee ballot review board the ballots are marked accepted after the voter's registration and signatures are verified and before they are sent to the precinct level. The Precinct Judge is responsible for ensuring the ballot is at the correct precinct and that the voter hasn't voted on election day or with another absentee ballot. Approximately 445 absentee ballots were rejected because the voter had otherwise voted so those envelopes could easily say accepted and still be rejected at the precinct level. I have no way of determining how many accepted absentee ballots were sent to the wrong precinct but I would expect that any ballots that fit that category should have been included with the ~1346 wrongly rejected absentees already considered.
Duplicate Original Mismatch: Paragraph 12(a) of Coleman's filing deals with this issue. I was the first to warn this would become a major issue in my diary from Dec 9th. This issue has the potential to produce a 110 vote gain for Coleman. Testimony from Deputy Secretary of State Jim Gelbmann proves that Force Coleman was instrumental in establishing the wording of rule 9 of the Administrative Recount Procedures in the 2008 General Election Recount Plan:
As the Table Official sorts the ballots, he or she shall remove all ballots that are marked as duplicate ballots and place those duplicate ballots in a fourth pile. At the conclusion of the sorting process, the Table Official shall open the envelope of original ballots for which duplicates were made for that precinct and sort the original ballots in the same manner as they sorted all other ballots. The Table Official shall disregard this step if there is not an envelope of original ballots, in which case the duplicate ballots will be sorted.
The recount followed that plan and Coleman started challenging the mis-matched originals when it became apparent that more Franken votes were appearing on the ballots in Minneapolis. Ramsey County's Election Director Joseph Mansky testified that the rule Force Coleman wanted the recount to follow was unusual for a recount. Force Franken is expected to bring force evidence showing that they were prevented from bringing forth challenges on the duplicate/original issue because of the rules Force Coleman proposed and without a recount allowing Force Franken an equal opportunity to challenge similar ballots the current results should stand (Franken's Affirmative Defenses, Pg 16 of 565). If this issue is settled in Coleman's favor he could gain as many as 110 votes if Franken gets equal treatment.
Coleman specified 21 precinct with alleged duplicate/original mismatches on page 109. Where gains or losses are mentioned below the numbers come from the certified recount totals after the challenges were overruled.
Dakota Eagan P-03: There were nine additional ballots counted in the precinct and a gain of five votes for Franken. Coleman challenged 6 ballots 5 of which were either originals or duplicates (no challenge stamp on public copies). Seven duplicates and their matching originals were posted on Minnesota Public Radio's website.
Hennepin Minneapolis W-2 P-5: There were 4 additional ballots counted in the precinct and a gain of 4 votes for Franken. Coleman challenged 4 standard precinct ballots as no duplicate. None of the challenged ballot were marked as originals. There was an anomaly in that none of the challenged ballots had judges initials. MNEC Section 204C.20 Subd. 2.
Excess ballots. ... If any ballots are not properly marked with the initials of the election judges, the election judges shall preserve but not count them; however, if the number of ballots does not exceed the number to be counted, the absence of either or both sets of initials of the election judges does not, by itself, disqualify the vote from being counted and must not be the basis of a challenge in a recount.
Hennepin Minneapolis W-3 P-5: There were 4 additional ballots counted in the precinct and a gain of 2 votes for Franken. Coleman challenged 2 federal only absentee ballots which were not marked original as no duplicate. The precinct reported 4 federal only ballots. Franken's Force should argue that these ballots should be counted if 4 other federal only ballots exist.
Hennepin Minneapolis W-5 P-6: There were 2 additional ballots counted in the precinct and a gain of 2 votes for Franken. Coleman challenged 1 precinct ballots which was marked original #5 as no duplicate. This may give Franken an opportunity to show that extra ballots exist in hundreds of precincts where there are no challenges based on duplication or other ballot handling procedures.
Hennepin Minneapolis W-7 P-7: There were 9 additional ballots counted in the precinct and a gain of 8 votes for Franken. Coleman challenged 9 ballots including 6 federal only absentee ballots as no duplicate all of which were marked originals.
Hennepin Minneapolis W-8 P-7: There were 11 additional ballots counted in the precinct and a gain of 12 votes for Franken. Coleman challenged 11 ballots including 5 federal only absentee ballots as no duplicate all of which were marked originals.
Hennepin Minneapolis W-8 P-10: There were 2 additional ballots counted in the precinct and a gain of 2 votes for Franken. Coleman challenged 2 precinct ballots as no duplicate 1 of them was not marked as original or duplicate and the other had no judges initials and the word original obliterated on both sides.
Hennepin Minneapolis W-9 P-2: There were 6 additional ballots counted in the precinct and a gain of 5 votes for Franken. Coleman challenged 5 federal only absentee ballots while Franken challenged 1 federal write in ballot as no duplicate none of which were marked originals.
Hennepin Minneapolis W-10 P-2: There were 11 additional ballots counted in the precinct and a gain of 7 votes for Franken. Coleman challenged 7 ballots including 1 federal write in absentee ballot and 1 federal only absentee ballot as no duplicate none of which were marked original nor were they initialed by the election judges. Franken challenged one precinct ballot which was marked original #2 and initialed as no duplicate.
Hennepin Minneapolis W-10 P-4: There were 5 additional ballots counted in the precinct and a gain of 4 votes for Franken. Coleman challenged 7 ballots. 2 were unmarked ballots without initials, 1 ballot was marked original #1 without initials, and 1 initialed ballot where duplicate #1 was obliterated and original #1 was added as no duplicates. Three of Force Coleman's challenges were for no original on initialed ballots which were marked as duplicates.
Hennepin Minneapolis W-10 P-7: There was 1 additional ballot counted in the precinct and a gain of 1 vote for Franken. Coleman challenged 1 initialed ballot marked original #5 where the word duplicate was obliterated for no duplicate.
Hennepin Minneapolis W-10 P-10: There were no additional ballot counted in the precinct and a loss of 1 vote for Franken. Coleman challenged 1 initialed ballot marked duplicate #32 for no original with a notation that there were two #32's.
Hennepin Minneapolis W-11 P-7: There were 9 additional ballots counted in the precinct and a gain of 5 votes for Franken. Coleman challenged 7 ballots for no duplicate, 4 precinct ballots, 2 federal only absentee ballots, and 1 federal write in ballot none of which were initialed nor were they marked as originals. Since absentee ballots are not counted until they are run through the tabulator and are not initialed when they are sent to the voter these could be valid votes which were not run through the tabulator. Force Franken could ask for a counting of the absentee ballot envelopes to determine if the number of counted absentee ballots match the number of absentee ballot envelopes.
Hennepin Minneapolis W-11 P-8: There were 22 additional ballots counted in the precinct and a gain of 9 vote for Franken. Coleman challenged 13 ballots for no duplicate and Franken challenged 4 ballots. Only 1 federal only absentee ballot was marked as an unnumbered original.
Hennepin Minneapolis W-12 P-8: There were 14 additional ballots counted in the precinct and a gain of 11 votes for Franken. Coleman challenged 14 unmarked ballots for no duplicate. 7 were precinct ballots without initials, 5 were federal only absentee ballots, and 2 were federal write in absentee ballots.
Hennepin Minneapolis W-13 P-1: There were no additional ballots counted in the precinct and a loss of 1 vote for Franken. Available images show 4 challenges with 13-1 written on the Coleman challenge stamp, only one was a W-13 P-1 ballot where the challenge was upheld because of an identifying mark. The certified recount data only has the one upheld challenge. The other three challenges marked 13-1 include one federal absentee ballot challenged with initials and marked original #15 which was challenged for no duplicate and two W-12 P-9 initialed ballots marked as original #13 and #14.
Hennepin Minneapolis W-13 P-3: There was 1 additional ballot counted in the precinct and no change in the number of votes for Franken. Coleman challenged 1 ballot marked duplicate #18 because there was apparently two duplicate number 18. The SOS's spreadsheet of Coleman Challenged Ballots for Minutes shows the challenges was rejected as a blue folder challenge and awarded to Franken, but the final numbers do not reflect that decision since three ballots were awarded the other pile for the precinct and the minutes only shows 2 ballots awarded to others.
Hennepin St. Louis Park W-3 P-12: There was 1 additional ballot counted in the precinct and a gain of 2 votes for Franken. All the ballots were marked and most were not numbered. Coleman challenged 8 ballots claiming the duplicates should counted and Franken challenged 4 ballots claiming originals should be counted. The canvassing board only awarded 2 votes to Franken, 2 votes to Coleman, and one to others according to the Recount Report by Precinct. This looks like a mess that will have to be cleaned up by the ECC Panel.
St. Louis Cedar Valley: There were no challenges made by either party and no discrepancy between the canvas report and the recount's numbers.
St. Louis Duluth P-4: There were 2 additional ballots counted in the precinct and no change in the margin. Coleman challenged 2 ballots while Franken challenged 1 ballot. All the challenges were originals without initials and no duplicates found.
St. Louis Duluth (Gnesen): There was 1 additional ballots counted in the precinct but Franken gained 8 votes in the precinct. Coleman challenged 1 unmarked ballot with a notation "ballot not remade?". While the precinct only had 1 additional ballot Coleman gained 11 votes to Franken's 19.
Found Ballots: Section 12(b) of Coleman's claim contains only the Maplewood P-6 and St. Paul W-3 P-9 claims at this time. The way Force Coleman works they could decide other ballots were found at any time.
Minneapolis W-3 P-1: Section 12(c) deals with the well known 133 ballots apparently missing due to the reported loss of envelope 1 of 5. Page 201 of Coleman's filing has the official report as to what was done to determine if the ballots existed in the first place. The ECC Panel will be faced with a difficult decision. This matter only has the potential to gain 46 votes for Coleman and I see valid arguments from both sides here.
Wrongfully opened Absentee Ballots: Paragraph 10 (d) of Force Coleman's initial filing relates to the opening of the wrongfully rejected absentee ballots on Jan 3rd. Apparently Coleman's forces has decided they did not actually agree to the opening of the wrongfully rejected that they had agreed were wrongfully rejected even though the SOS's office was under a MNSC deadline to open and count the ballot by the end of the next day. Force Coleman seems to think some of those ballots were bad and even though they had no proof at the time that they were. Coleman's filing does not contain any specifics as to which ballots were improperly counted.
Wrongfully Allocated Challenged Ballots: Paragraphs 10(f), 10(g), 17, and 18 relates to unspecified allegedly erroneous decision by the canvasing board, without specifics it is impossible to evaluate these claims.
Other claims: The rest of Coleman's filing relate to a hodgepodge of errors at the polling places and there is no way Coleman can prove who received the vote even where there is proof someone voted erroneously or an election official made an error concerning a ballot.
Conclusions: Solomon's Cloak is wearing thin but I'll put it on and do my best.
Coleman is going to have a hard time raising enough money to pay for this and will never be able to run for office again because every dime he gets will be seized to pay court costs and lawyer's fee.
Coleman won't gain anything due to the missing ballots in Minneapolis W-3 P-1 because the best evidence of voter intent is the election night totals.
Franken will object to Coleman's bleeding heart absentee voter because the voter has an alternate form of redress by filing individually.
Some specifics. Coleman will not get any votes due to the alleged double counting because the recount was performed using rules he promulgated.
Franken will object to the next set of absentee ballots Coleman attempts to enter as evidence because Coleman hasn't proven that they will affect the outcome.
Al Franken will be the next Senator from Minnesota.