Late Friday afternoon, the Election Contest Court in Minnesota delivered a body blow to the Coleman campaign's continuing effort to change the outcome in the Minnesota Senate race. The ECC issued an Order that will severely restrict the issues in this case. The Order will speed up the pace of the witness testimony by narrowing the categories of absentee ballots that can be considered legally cast, despite having been rejected already by election officials.
The ECC's Order will not completely shut down Coleman's case, but it really narrow the universe -- the number of absentee ballots that the court will consider in further testimony. The excruciating ballot-by-ballot questioning of election officials will now move fairly quickly. It's hard to know, from the outside, how many ballots are left to be reviewed, but the number is a whole lot smaller than it was when court recessed on Friday.
What issues are left to be decide in this case, who will win, and when will have a new Senator from Minnesota? Here's one lawyer's reading:
As an initial matter, I should note that the ECC's order effectively closes out debate over 12 of the 19 categories it asked the two campaigns to consider. Nothing in the court's order actually states that any of the remaining categories of ballots will be accepted. I assume, though, that the absence of any ruling on the other 7 categories the court heard arguments on, suggests the court has decided that previously rejected absentee ballots which fall in those categories are legitimate. That is, they are legally cast ballots which should still be counted. So what are those categories? What is left for the Coleman campaign to argue in its election contest?
• An absentee ballot cast by a voter who was not registered to vote in the precinct encompassing the voter's address on the absentee ballot return envelope and absentee ballot application.
However, the ECC said it would not consider any "ballot cast by a voter not registered to vote within the precinct in which he or she resides."
Meaning that the ECC would consider those absentee ballots from voters who reside in the precinct in which they are registered, but who for some reason, filled out their absentee ballot application and envelope using an address in another precinct. Basically, this would allow for ballots from those who forgot where they lived and wrote down a wrong address -- an address in an entirely different precinct.
• An absentee ballot cast by a voter registered and eligible to vote in a precinct who was issued a ballot for the wrong precinct due to official error.
I suppose in this case, if they can prove that the application and certification all contained a correct address which matched the voter's registration and the voter's actual address, then a ballot for the wrong precinct must be official error.
• An absentee ballot within a non-registered voter absentee ballot return envelope on which the voter failed to sign the certification's signature box but did sign the absentee ballot return envelope elsewhere.
The statute requires that the officials must be satisfied that the signature on the certificate is genuine -- that it matches the application. It doesn't matter where you sign on the return envelope -- it doesn't have to be in the space provided -- just so long as you do sign somewhere. The ECC defines this category with respect to non-registered voters, but the same problem and the same rule ought to apply for ballots of previously registered voters.
• An absentee envelope returned by a non-registered voter in an absentee ballot return envelope on which no box in the proof of residence portion of the absentee ballot return envelope is checked by the witness.
Here's a situation where the form seems to impose a duty on the witness, but one which is not found in the statutory law. Since the law does not require the witness to check this box, the ballot cannot be rejected for that reason. However, this rule applies to non-registered voters. If they did not return a completed registration along with their ballot, their vote will still not be counted.
• An absentee ballot in an absentee ballot return envelope in which the witness certification is signed by a non-notary witness who failed to provide a street address.
While the non-notary witness must be a registered voter, there is no requirement that the witness provide a home address in the certification. During the trial, there was testimony from one county official that it was the office’s procedure to check whether the witness was registered. Since at least one county would do independent verification, the ECC is presuming that there is a process to ascertain whether the witness is registered, regardless of whether the certificate identifies a residence. Of course, one could argue that he address might be crucial in identifying a particular witness, especially in a state where every third person is named Anderson. The statute, however, does not specify that the witness must provide an address. So, the ECC is unwilling to read that requirement into the statute -- notwithstanding the fact that the certificate does have a designated space for the witness' address. It would seem to be common sense that the witness should provide an address, but it is not in the statute.
The ECC is consistently following what is in the statutes, refusing to offer a more permissive or more restrictive rule, even when it might seem sensible. Coleman's campaign argued for a "substantial compliance" standard, which the court implicitly has rejected. In almost all cases, the ECC is requiring actual compliance with the laws, not merely substantial compliance. In arguments, Coleman's attorney remarked that it seemed one of the judges was not buying his argument, which resulted in a lot of laughter. It seems he was right. The ECC did not believe it could ignore the letter of the law.
The Coleman campaign also argued that voters should be excused if their noncompliance was not entirely their own fault. If their error was induced or invited by ambiguous instructions or errors of election officials, those votes should be counted, according to Coleman. Here, the ECC offered a mixed result.
In a defeat for Coleman, the ECC ruled that it could not allow a vote by an unregistered absentee voter, even if the failure to register was the result of errors or omissions by election officials. Notwithstanding that the underlying error might not have been the fault of the voter, the ECC could find on basis for carving out an exception to the registration requirement -- a requirement which is a necessary safeguard against voter fraud.
The ECC ruled, however, in some other cases, errors by election officials were not a reason for invalidating an absentee ballot:
• An absentee ballot cast by a voter where there is no independent evidence that the voter completed an absentee ballot application.
This would suggest a clerical error. If the voter had an absentee ballot, presumably the voter had applied for the ballot. So, the ECC must be presuming that the application was lost by election officials.
• A UOCAVA ballot submitted where there is no evidence that the voter submitted a Federal Post Card Application or absentee ballot application.
Here, the court is leaning to protect the ballots of the military. Also, as with similarly situated regular absentee ballots, the ECC seems to be presuming clerical office error as a likely explanation. Absent proof either way, the court is leaning towards allowing these ballots.
• To sum up: If it appears that officials may have lost the application after mailing off the ballot to the voter, the ballot should be counted. If they have both the application and the ballot return envelope, the signatures must match -- and they must both be the voters (unless a legal exception applies). It is not required that the signatures on the envelope be in the right place, but the envelope must be signed by the voter and the witness. The witness doesn't have to fill in his/her address, nor check off the box for witnessing proof of the voter's residence.
• A ballot issued for the wrong precinct will be counted, if it's shown to be the officials fault. Most address/precinct issues are presumed to be the voter's fault. If the addresses on the application and the return envelope don't match, the ballot doesn't count. If the addresses match, and the appropriate ballot was mailed, the voter must really reside and be registered in that precinct. Otherwise the ballot won't be counted, with one exception. If the voter was registered in another precinct, that ballot may still be counted, provided that the voter actually resides in the precinct where s/he is registered. As noted above, this saving rule means that the voter used the exact same wrong address on the application and ballot envelope, even though the voter is registered and resides in another precinct. Hard to imagine such ballots are out there, but there must be at least one – otherwise, the ECC would not have bothered with this category.
There court has not decided all outstanding issues -- including the disposition of other categories of absentee ballots. The Franken campaign is seeking to include ballots where the dates nest to the voter and witness signatures are not the same. There could be a number of reasons why this is so, including a mistake by one. The Franken campaign is correctly arguing that the statute does not even require either to date their signature, so the differing dates should be of no legal significance. This is virtually the only category the Coleman camp sought to exclude, prior to the Court's order setting out the 19 categories covered in this week's arguments.
One large category of rejected ballots consists of those ballots which were rejected because of unmatched signatures -- that is, they were rejected because the name and/or signature on the ballot return envelope was different in some way from the registration signature/name or the signature/name on the absentee ballot application form. There are two statutory standards here. First:
"(1) the voter's name and address on the return envelope are the same as the information provided on the absentee ballot application;"
The court has now decided that almost any mismatch in the address provided is sufficient to reject the ballot, so the question here is whether variants in the name are also sufficient to reject the ballot. This includes using and not using middle names, or perhaps nicknames. We do not have any indication yet, where the court is going to go with this issue.
The same consideration applies to signatures -- the election judges must be satisfied that...
"(2) the voter's signature on the return envelope is the genuine signature of the individual who made the application for ballots;"
Here, we get in some murky waters. The Coleman campaign is arguing vociferously that the counties applied wildly different standards in determining the genuine character of the signature -- in deciding what is or is not a match. Some jurisdiction had few or any rejection on this basis, while others had many such rejected ballots.
The ECC really has 2 questions here. First, is there an equal protection problem, considering that some jurisdictions demanded stricter matches in names and signatures than did other jurisdictions. Second, even if it's not per se an equal protection problem, how much deference does the court owe to such determinations by the election judges. Are these the kinds of administrative decisions that judges typically respect if they are not arbitrary or capricious? Or, may the judges decide for themselves, on a de novo basis, whether there the signatures are genuine -- whether the names and signatures match?
I think the court is disturbed by the differing treatment across jurisdictions. That's evident in the fact that the court avoided these questions in the Order narrowing the categories of ballots to be reviewed. They may not want to go down the Bush v. Gore equal protection path, but they do not have to go that far in reviewing these determinations. Election judges have no particular expertise when it comes to judging and comparing signatures or deciding whether names match. It is laborious work, but it does not require any expertise. The ECC may decide that there is no reason to give deference to decisions by election judges to reject ballots for such purported defects. The ECC can decide the judges of the court are fully capable of reviewing these materials and deciding which determinations were erroneous -- which ballots should be counted.
Alternatively, the ECC can decide that there are good reasons to defer to the election judges original calls on names and signatures. Unlike other issues in this case, these decisions must be, in some respect, judgment calls. The legislature gave election judges the responsibility to make such judgment calls. The ECC may be reluctant to substitute its own judgment, for the judgments of the election judges.
At this point, there is really no way to know which way the judges are leaning. They didn't foreclose this issue, but they did not give any additional indication which way they are inclined to rule on the question. While there are a fairly large number off these ballots, there is no particular reason to believe that Coleman can get enough votes in these ballots to significantly cut into Franken's lead.
The absentee ballots were a long-shot for Coleman, anyway. Back in November, the Supreme Court ordered the parties and election officials to sort through the rejected absentee ballots and count those ballots which everyone agreed had been improperly rejected. Eventually, 933 ballots were counted, and Franken's overall lead increased by 175 votes. There was no reason to believe the remaining absentee ballots -- even those cherry-picked by Coleman -- would break dramatically differently, in favor of Coleman.
Finally, the ECC will still consider Coleman's claims of double-counting. There is already evidence in this trial, elicited by Franken's counsel, suggesting that in some counties, the counting of unmatched originals may have favored Coleman. Even if Coleman can show that double-counting occurred because of unmarked duplicates and unmatched originals both being tallied in the recount, it seems unlikely that he can gain enough votes to fully close the margin. Moreover, this line of argument will open up a can of worms on the equal protection front. The recount used a somewhat arbitrary rule on counting originals. Franken's campaign has argued that all 4001 precincts would have to be reviewed with respect to the duplicate ballot issue to honor equal protection, not just those the Coleman campaign thinks might contain double-counted Franken votes.
Of course, this may not be the end of the matter. Coleman will surely appeal the ECC's ruling on these categories, as well as any final ruling that leaves him trailing in the vote total. I can say, however, that the ECC's ruling is on pretty solid legal footing. It is unlikely that the Minnesota Supreme Court will overturn these rulings. If Coleman decides to appeal the matter to the U.S Supreme Court, he will face a number of obstacles.
First, the Minnesota Supreme Court has the final word on Minnesota law. SCOTUS cannot overturn their decision, except to find a Constitutional violation. After the Bush v. Gore debacle, SCOTUS is not likely to go down the equal protection road again. At least not without a better map.
There's another reason why SCOTUS would stay clear of this hot potato. As I read Minnesota law, the election contest ends when the state appeals are concluded -- although, the logic is a bit circular. According to statute:
In case of a contest, an election certificate shall not be issued until a court of proper jurisdiction has finally determined the contest.
For reasons I will argue below, once that certificate has issued and Franken has been seated, there can be no court of proper jurisdiction.
According to the election contest statute:
After the time for appeal has expired, or in case of an appeal, after the final judicial determination of the contest, upon application of either party to the contest, the court administrator of the district court shall promptly certify and forward the files and records of the proceedings, with all the evidence taken, to the presiding officer of the Senate...
Minnesota law provides for direct appeal to the Minnesota Supreme Court, and nothing further. Of course, Coleman could always appeal to the the U.S. Supreme Court, but I believe that would be beyond the scope of what Minnesota law can consider "the final judicial determination of the contest." At that point, SCOTUS would be asked to rule on the validity of the contest, not the result. They would not be determining the contest. They could only overturn the entire contest, and order it to begin again. So, once the Minnesota Supreme Court has made its final determination, the matter should be referred to the U.S. Senate -- even if Coleman decides to file an appeal with the U.S. Supremes.
When the Minnesota Supreme Court rules against Coleman's appeal, the Governor and Secretary of State should sign and issue the election certificate. In fact, at that point, I believe that Franken can demand they issue the certificate. Once that's done, the Senate will seat the winner -- Senator Al Franken. Because the Senate is the final judge of the elections of its members, SCOTUS cannot compel the Senate to reverse seating Franken. Some may interpret the Adam Clayton Powell case as holding otherwise, but I think the Senate would be on firm ground to seat Franken without fear of judicial interference. Because they could not force the Senate to unseat Franken, SCOTUS would probably never even reach Coleman's Constitutional arguments. They don't issue advisory opinions, and they would view any court's review in such a case as interfering with the Senate's own prerogatives.
In short, Friday's ruling means that Al Franken will not have to wait until the Summer or Fall to take his seat. It also means that the Democrats will be moving that much closer to 60 in a short time.