Today, Minnesota counted the absentee ballots the Minnesota Election Contest Court ordered counted, and not surprisingly, Al Franken's lead has swelled to 312 votes over Norm Coleman.
There are two remaining decisions for the ECC -- whether to count the 133 missing ballots and what to do about the 100 double-counted votes the Coleman campaign claimed (with zero evidence) were cast. More likely than not, those final two issues will be dispatched in Franken's favor, but worst case scenario, losing those two claims would net Coleman just 146 votes, clearly not enough to overcome Franken's lead. The "counting the votes" phase of this election is finally over, six months after the election. All that's left now is the appeals.
The only way for Coleman to overcome this lead would be to win an appeal against the election court's prior rulings in favor of strict standards to let in new ballots, or to somehow win his much more far-fetched proposal to retroactively declare a number of absentee votes illegal and deduct them from the totals based on countywide averages. The first one is more likely in terms of feasibility, and even that's a long shot, leaving the Coleman camp at their other proposal to "set aside" the election result entirely.
So at this point Coleman is left to appeal to get more votes put in from his campaign's list, under more lenient standards and a lower burden of proof -- the court rejected many of his submissions on the grounds that his legal team had failed to provide sufficient evidence -- and to prevent Franken from succeeding at this same game.
Winerev tells us what's next:
- The Election Contest Court (ECC) needs to rule on a couple groups of ballots already counted that Coleman wants out (the Mpls 133 and the supposed double counted 100) which, if allowed, would take 146 off of Franken's lead (net loss.) They may well rule on these by themselves OR
- The ECC issues its final ruling on all the disputed points AND declares one candidate has received the highest number of votes. Loser has 10 calendar days from the date of this decision to file an appeal to the MN Supreme Court or the ECC decision is FINAL. Appeal to the Supreme Court is preceded by a bond being posted by the losing appealing party [...]
- MN Supreme Court could deny hearing the case ("It is so open & shut...."), but this is most unlikely. If they take it, appellant has 15 days to forward ECC transcripts and evidence to Supremes. MN Supremes would schedule oral arguments, probably rather quickly, then take it all "under advisement."
Lawyer TerribleTom raised an interesting angle a few days ago. At this point it seems its possible the MN Supreme Ct. could rule on the case and issue its opinion with all the details and legal stuff LATER (like months from now). This would let the case be considered FINAL.
- Whenever the case becomes FINAL by MN law for a US Senate election the Governor's office prepares a certificate of election, the Governor signs and it is countersigned by the Secretary of State. If either won't sign the winner of the senate race could file for a Writ of Mandamus. The MN Supreme Ct. could so issue such, that a state official perform said duty on pain of felony and imprisonment. Pretty drastic, but on the books.
- Winner takes Certificate of Election to US Senate. Senate seats winner as McConnell and Cornyn both fold like a couple of worn out lawn chairs in a high wind.
At that point, Republicans could carry on, appealing to the federal courts. Would Franken be seated? Depends on whether Republicans could get a federal judge to issue an injunction. It would all be for naught in the end, of course, but Republicans ceased making this about justice and democracy a long time ago. At this point, they're merely fighting to prevent that 59th Democratic vote from being seated in the Senate.