Coleman Playing Defense In The Recount, Needs Lawsuit Victories To Win
The Coleman campaign is now definitely the one playing defense in the interminable Minnesota recount, with its path to victory increasingly narrowing and becoming dependent on winning legal battles in the courts.
To be precise, here's what a Coleman spokesman told reporters: "Our message today is simple and clear: If the balance of this process is completed fairly and legally, Norm Coleman will be in the lead."
They key thing is that each campaign has a pet legal issue here: For Coleman it's the alleged double-counting of a small number of absentee ballots, and for Franken it's the definitely proved non-counting of an even greater number of absentees. The state Supreme Court released a very muddled opinion on Franken's issue last week, after the Coleman camp had sued to stop the counting of wrongly-rejected ballots, and they're scheduled to hear arguments on Coleman's issue tomorrow.
The Coleman campaign maintains that a count that excludes double-counted votes -- something the Franken camp denies has been proven to have happened in the first place -- will make Coleman the victor. But for Coleman to win, he would not only need a big victory on his issue, but he would also need separate legal victories to totally rob Franken of any progress on the other question. And then he would need to accomplish all of this without without provoking a dispute of the election at the Senate itself.
I don't think the double-counting is really open to question. Duplicates were made and not correctly matched with their originals and the ballot count is higher than the number of voters. I don't know what other conclusion one could draw.
However, there is absolutely no question the wrongly-rejected absentee ballots will eventually be counted. How could they not? The gain for Franken from these is almost certain to overwhelm any gain Coleman makes from the duplicate ballots. Unless Coleman can come up with a good argument for not counting the "fifth pile" absentee ballots (he hasn't yet), he's cooked.
December 22, 2008 3:15 PM | Reply | Permalink
Well, the Court did not say "count the 5th pile ballots" so I'm sure some clever person could figure out a way to block counting to some extent. It is possible that some 5th pile ballots should have been counted (mere initial clerical error) while others should not have been counted (some other defect in principle other than the 4 formal reasons). This is where Coleman might seek to find leverage. But if the court allows other reasons to block some 5th pile ballots, it opens the door to a complaint demanding that some ballots in the first 4 piles be counted. This would be "remediable defects". For instance, if a voter omitted the signature, should the voter be offered a chance to come in and sign the ballot, to ensure that all legit voters get their votes counted? And then that vote should be counted.
Since MN law allowed specifically 4 reasons to reject a ballot, there is an implication that all other ballots (the 5th pile) should be counted but kept separate in case a Coleman (or Franken) complaint requires court intervention for some fraction of 5th pile ballots.
At some point Coleman may have to deal with karma -- he called for Franken to give up, not not call for a recount. If the canvassing board comes up with a figure in Franken's favor before all the nits have been picked, the same argument applies to Coleman... by his alleged reasoning, he should drop it and concede.
I don't expect he will, unless external forces come to bear on him (such as FBI investigation).
December 22, 2008 3:49 PM | Reply | Permalink
For all practical purposes, the MN-Supremes did say to count the 5th pile ballots. They just didn't say what the standard should be for deciding which ballots qualified. By throwing it back at the parties, I think they were just heading off the possibility of a later lawsuit on the criteria.
MN law is pretty clear and I've not heard of any other defect that would cause these ballots to be legally rejected. Ultimately, I don't know how you could reject a ballot that met all the legal requirements.
December 22, 2008 4:02 PM | Reply | Permalink
I think the point is that "practical" is not what this dispute accepts as a given. If the Court had simply said "count the 5th pile ballots" that would have been the end of it until one party petitioned further. As it is, the court said "agree on a standard as to which ballots to count" (more or less).
December 22, 2008 6:26 PM | Reply | Permalink
As far as the double counting of votes, the committee was unable to match some duplicates with their originals. To throw out all of those ballots would disenfranchise some voters. The court has to weigh the possible double counting of votes against denying some citizens their right to have their vote counted. I seriously doubt they want to come down on the side of not counting votes.
December 23, 2008 3:36 PM | Reply | Permalink
Eric, I didn't read anywhere about why the canvassing board didn't meet today. Has a statement been made?
December 22, 2008 3:40 PM | Reply | Permalink
Allocating all the withdrawn challenges is taking longer than expected.
December 22, 2008 4:04 PM | Reply | Permalink
But what does Rick Warren think about all this?
December 22, 2008 3:55 PM | Reply | Permalink
Good thinking!
December 22, 2008 4:29 PM | Reply | Permalink
My understanding is, based on an article in today's Strib, the Canvassing Board didn't meet today because the allocation of withdrawn challenged ballots is being completed.
As best I can tell, the math is thus: Franken's lead is currently at 251. Also from the Strib: Franken has challenged about 400 more ballots than Coleman. Most of those will go back to Coleman, but there will also be some for Barkley and some no votes/overvotes.
If, say, 75% of Franken's excess withdrawn challenges go to Coleman, that's a net for Coleman of 300 votes, which puts him at +49. The Franken camp has estimated they will be ahead by 25-40 when all the challenges are allocated. I'm sure they have a better insight as to how the withdrawn challenges will shake out.
If the duplicate ballots are found to be double-counted, I've heard that's a net of about +40 for Coleman. Ergo, it wouldn't be shocking if one candidate or the other had a single-digit lead at the end of the day tomorrow.
December 22, 2008 4:21 PM | Reply | Permalink
With all due respect, I'd leave the analysis to the people in the field. Everyone here speaks with such absolute certainty and conviction, yet opinions are all over the map.
The Star-Tribune has done a pretty good job of being on top of this recount, and I'm certainly not ready to concede to Sen. Coleman's argument about double-counted duplicate ballots in the absence of physical evidence, as some people seem wont to do even in advance of the Minnesota Supreme Court's ruling on the issue. Let's hear his argument and see if he can support his contention with documentation.
I'll keep my fingers crossed for Al Franken, but I'll also wait to see how this plays out before opining about the results. Given the deliberative nature of the recount process thus far, I'll trust Minnesotans to get it right, however long it may take.
December 22, 2008 6:45 PM | Reply | Permalink