In the Minnesota Senate Election Contest, the closing arguments revolved around the principle of "Every Vote Counts". Democrats, especially Al Franken, have long been champions of "Every Vote Counts". Normally, Republican campaigns are not advocates of "Every Vote Counts" because making voting more difficult normally disenfranchises more Democratic voters than Republican voters. In this case, only counting more votes gives the Republican Coleman campaign, its only chance. So bringing Republicans into "Every Vote Counts" values, even temporarily is a good for maintaining our voting access. Coleman's attorney Friedberg even said that no one was trying to vote twice, because people knew that a vote on election day, would invalidate the absentee ballot.
Summary of Closing Arguments:
Duplicate Ballots: When original votes are not machine readable, a duplicate machine readable vote is made with labels on both the originals and duplicates. In the election, the originals were not counted and kept in separate labeled envelope. For the recount, these original/duplicates were matched up and only the originals were counted. The problem is that some precincts were found where there was no labeling. The question then is. "Did the judges forget to process the originals with no votes counted or did the judges forget to do the labeling?". All campaigns agreed to "Rule 9" where the agreed resolution to this case was count the originals. So the Coleman campaign finds itself arguing that it agreed to this rule, but now they have changed their minds.
The evidence for problems with original/duplicate processing is based on one Minneapolis head election judge's testimony, Pamela Howell. She testifies that she heard an exclamation that judges forgot to label duplicates. If this happened, there should have also been testimony from two judges who supposedly made the errors and also an entry in incidence report. That was missing. Also Pamela Howell testified that judges initialed ballots, yet copies of ballots showed no judges initials. Pamela Howell did not first contact the Secretary of State or any other election official to report this problem, her first contact on this problem was contacting the Coleman campaign, months after the fact.
So the question then is does this one testimony in one precinct make that the case of Coleman's required "burden of proof"? The Coleman campaign would like to recount 10 precincts, using new rule counting the duplicates instead of originals. Strangely, the Coleman attorney Friedberg made a strong closing arguments for NOT changing the rules after the fact.
Differing Applications of the Rules: Basically the Coleman campaign says that different applications of the rules were applied, so the court should overturn its Feb 13 ruling, to make ballots currently ruled illegal now legal. This sounds like if an error was made, the same error should be made elsewhere. The Coleman's campaign is also arguing that the Secretary of State database is constantly changing, which is true because people's circumstances are changing. In court, Joe Mansky did testify that two errors about Nov 4 voter status were just recently fixed. Opposing arguments have pointed out that Coleman campaign had direct access to the county officials and county documents, the original evidence in this case. To really make the case, there would have to be a systematic election error. The court already ruled there is no systematic election error.
The Court is confident that although it may discover certain additional ballots that were legally cast under relevant law, there is no systemic problem of disenfranchisement in the state's election system, including in its absentee-balloting procedures.
Missing 133 ballots: The missing 133 ballots in Minneapolis were counted using the "next best evidence" of the tape from the voter machine. Historically. there are strong precedents for counting these votes. If these votes were removed from the count, the Franken total would decrease by 44 votes. The case looks strong for counting those 133 ballots.
Substantial Compliance vs Full Compliance: The Franken team was much more meticulous in making sure that once the original reason for a rejected ballot was addressed, that the vote was also legal in every other way. For example: if there is enough time, the voters are informed that their absentee ballot was rejected. These voters will often then vote on election day. This means getting the evidence of one and only vote is essential, which the Coleman campaign did not always cover. So the key court decision will be deciding what the requirements of legal ballot are and which of the rejected absentee ballots fulfilled every one of those requirements.
The Coleman campaign is claiming 1650 votes, yet their own spreadsheet shows missing requirements. The Franken campaign is claiming 252 votes, fully qualified in every legal way. Additionally there is already 47 new votes authorized to be counted through the "count my vote" petition process (the Naumen votes).
The closing arguments pitted the Coleman campaigns claim of having met the "preponderance of evidence" requirement vs the Franken's campaign claim that the Coleman campaign "woefully failed to a carry a burden of proof". If you believe that the goal of the Coleman case was to get enough votes to make Coleman the winner, then this was a poorly done case. However if you believe that the goal of the Coleman case is simply delay as long as possible, then the Coleman team is doing extremely well.
What's Next: The MN Supreme court has already said that an election certificate should be issued when the options of Minnesota courts have been exhausted. So I expect that in this next week, the election court will request that more absentee ballots will be opened and counted. That will be the drama day, where I expect the Franken vote advantage will increase. Then the Franken will petition the MN Supreme court for the election certificate and the Coleman Campaign will appeal. There will be yet another hearing, yet I think that Supreme Court will quickly dispose of this issue. We could be surprised by a "gracious" concession by Norm Coleman, which would probably have more to do with lack of funding.
Perhaps the most important aspect is the continuous live coverage by the Uptake and the constant attention of blogs and citizen journalists. People across the world had a chance to see the fairness of the Minnesota election process. The Minnesota court said:
Of the approximately 286,000 absentee ballots cast by voters, roughly 4,800 are at issue in this contest and remain unopened and uncounted, This is less than 2% of the absentee ballots cast in the general election.
Minnesota has a right to be proud of our election process!
Cross posted on MN Progressive Project