Minnesota Supremes Go Partly With Coleman On Absentee Ballot Suit, With Major Strings Attached
A divided Minnesota Supreme Court has now ruled on Norm Coleman's lawsuit to stop the counting of absentee ballots that are found to have been rejected through clerical errors: The court appears to have mostly ruled for Coleman, but with some very important strings attached.
The court has ruled that counties can't decide on their own to review ballots. Instead, they've ordered the two campaigns and the various local election offices to get together and agree on identifying absentee ballots that were rejected improperly, and then to have them counted. In theory, the Coleman campaign could agree to nothing on any ballots -- getting nothing counted -- but the court threatened sanctions against either party if they act in bad faith. So we'll see how that works out.
What effect does this have on Franken's chances of winning? Not much, in that the current running vote count projecting a Franken win has as one of its basic assumptions that none of these votes would get counted, anyway. But it can be seen as a provisional win for Coleman in the sense that Franken's chances would have gone from likely to near-certain if the court had gone his way.
And one other thing: The court has set up this process of vote-reviewing to end on December 31 -- meaning this race will absolutely not end until at least the first week of 2009, right when Senators are sworn in, as the final paperwork is reviewed on whatever changes happen because of this.
Late Update: The Franken campaign has their own take on the opinion, claiming a big victory in terms of how the court didn't go for Coleman.
So does this mean that after Franken takes the lead tomorrow HIS camp will be against counting the wrongly discarded absentee ballots?
December 18, 2008 7:03 PM | Reply | Permalink
This is CRAZY.
Campaign Diaries explains that the roles could soon be reversed, though. If Franken grabs the lead after all challenged ballots are processed (and this is a very real possibility considering today’s developments), it would be Republicans who would clamor to include the absentee ballots and Democrats who could be in the position of delaying the process.
December 18, 2008 7:16 PM | Reply | Permalink
No... not crazy at all. See below. I think the ruling could play very strongly towards Al. See my post below, and think about:
* Al wants those ballots counted
* the Sec of State wants them counted
* most of the counties want them counted
* the State Canvassing Board wants them counted
and read very carefully:
"Because previously rejected absentee ballots that all agree were rejected improperly should be counted..."
-MN Supreme Court
* The MN Supreme Court *wants them counted*.
So you've got Norm standing on an island with the MN SC _ordering_ him to come up with a process to get them counted.
Paragraph 4 of the rule is a pretty stout order aimed at Norm, his representatives and specifically his lwyers not to screw around here.
He's pretty fucked if he stonewalls on this one. There are lots of happy sentences in that order for the Franken people and the Secretary of State to pull out and throw at Norm if he stonewalls.
Those are going to get counted unless Norm conceeds the race after Al takes the lead on Friday (as we all assume). That really is the only thing that's going to stop him.
So this really isn't a bad ruling. It orders a full counting of this class of rejected ballots, and not the voluntary half ass way it was before. This allows the State Canvassing Board to go to the counties the begged off of the voluntary plan, wave a MN SC Order infront of their face, and tell them to come to the table to come up with a solution on these ballots.
Again - this is a *good* ruling if you read it carefully.
John
December 18, 2008 7:30 PM | Reply | Permalink
To follow-up on myself:
I tend to agree with Justice Anderson's Concurrence & Dissent. His point is the the Court's ruling is flawed in reading the law, but that it attempts to get to the same place where Anderson reads the law: these rejected ballots should be counted.
Anderson pokes at the majority for putting their faith in the politicos to Do The Right Thing when the politicos are clearly more interested in their careers than the right thing.
On the other hand, you have the entire court, even the one full disenter and the one partial disenter, strongly say:
Get These Ballots Counted
It's going to be tough for Norm's camp to fuck around and not get them counted.
John
December 18, 2008 7:44 PM | Reply | Permalink
Actually... this isn't that bad if you read it carefully. The Order could be read to cover those Counties that refused to consider counting these Ballots. As people have reported, some of those counties are ones where Al did very well.
It's likely that there will be an "All or Nothing" agreement on this. If it's All, than those counties will have to follow this as well.
The court also, as Eric points out, pretty strongly told the parties to get together and come up with an agreement to *count* these ballots. It's not really an other to "not count" them. It's only to halt the method that the was in process.
I think one of the writers, probably Nate Silver in the post where he made the Underwear Gnomes Strategy crack, that the ruling Norm was asking for might end up biting him in the ass.
*checks*
Yep, here it is:
http://www.fivethirtyeight.com/2008/12/coleman-v-minnesota-canvassing-board.html
"Coleman could very conceivably win his lawsuit, but have it work to his ultimate detriment if the end result is a more complete and comprehensive review of the absentee ballots."
I think if you read the ruling, it has a very strong potential to be to the detriment of Norm. Especially if he's behind after Friday's round of Challenged Ballots. It's going to be very hard for him to take the Moral High Ground on attacking the ruling of these challenges while at the same time playing a bad faith game on the Absentee Ballots.
John
December 18, 2008 7:18 PM | Reply | Permalink
I think the Court made a major mistake. It should have directed that all "5th pile" ballots be opened and counted. This should have been a no-brainer, not left up to the discretion of an official in each election area. The 5th pile is exactly those ballots which were not rejected for legit reasons under state law. Therefore there is no need for anyone to agree on a method of determing which ones of them should be counted at this point.
If there is reason to believe that ballots were wrongly placed in the 5th pile, that's yet another issue, another level of incompetence or fraud at the various counting locations.
December 18, 2008 7:27 PM | Reply | Permalink
So is it assumed that Franken and Coleman know which way the absentee ballots voted? Either they're registered to one party or the other or by their demographics?
December 18, 2008 7:30 PM | Reply | Permalink
Two comments, perhaps germane to further legal wrangling.
1. The two dissenters wanted the counties to immediately count the votes that the local boards thought were wrongly rejected. That is, the majority decision (which apparently includes the Republican justices) went less far than the dissenters, not further. The most the Coleman party could get was an order to cooperate on deciding what votes were wrongly rejected.
2. This will set the tone for future appeals to the Minnesota Supremes, and the final clauses about good-faith obligations -- how Minnesotan! -- put the onus on Coleman and his people to cooperate. After all, if he tries to block or torpedo this counting process, the Court will rather obviously be quite peeved.
For the law mavens out there: does this judgment open or close any options for trying to drag the SCOTUS into it, especially on the equal protection issue. My gut says that this one will be radioactive to Roberts, and that the SCOTUS will probably demur, but who knows more on the legal front.
December 18, 2008 7:38 PM | Reply | Permalink
Completely agree that the MN SC is boxing in Norm on his appeal back to the MN SC. They've told him what to do (count them), and how to do it (play nice with the Sec State, the Canvasing Boards, and the Franken Campaign). If he causes the first not to happen because he fails to do the second, he's got some pisses of Justices. It's clear that the two who disented would be happy to woodshed Norm, and any of the majority that were holding out hope for Norm and Al to play nice will join in on that cuontry whipping of Norm.
I also agree that it reads like alike a set up to block off Norm's equal protection claim. Get them all counted. If they don't all get counted, who caused that to happen? Norm. If Al is somehow behind and needs to appeal, the MN SC has set up a process for equal protection and again it will likely have been Norm that caused it to fail.
John
December 18, 2008 7:52 PM | Reply | Permalink
i don't get the optimism.
1.
there are over 5000 (2750+2600) ballots left to add to the totals that have been challenged, most of which the challenge has been withdrawn.
colman's pile is bigger by 150 (which is good for franken) but the distribution of what the challenges look like have been different, i think, in that franken tried to get more disqualified ballots counted for himself vs trying to disqualify counted votes. So coleman should get a higher percentage of 2600 then franken's percentage of 2750. What that adds up to is unclear.
2.
the court decision reads to me like the pile 5 votes won't be counted. If any pile 5 votes get counted before the imposed deadline i'll eat some of the broccoli in the freezer.
December 18, 2008 8:02 PM | Reply | Permalink
I think it could have been a worse decision for Franken and it isn't a total loss, but the idea of involving the candidates in setting standards for acceptance of the wrongly rejected absentee ballots is bad public policy. It's not even clear from the opinion that the candidates themselves have to adhere to the same standards in each county, which could open up a Pandora's box of opportunism for one or the other or both.
To me, it is an unworkable, impractical decision (not to mention wrong. It seems to me, as others have pointed out, the only way to address the equal protection argument would have been to order that all counties be required to count fifth pile votes, and either the court should have set out uniform standards or delegated that task to the Canvassing Board (probably the latter). Not necessarily what Franken asked for, but the right and fair one. That's even kind of what Norm's fallback position was if the improperly rejected absentee ballots were adjudged to properly be included in the recount prior to certification, and it's not such an unreasonable position on its face. You can't just have counties like Ramsey (St. Paul) saying we don't feel like counting, while others submit their previously improperly rejected ballots, and set up incomplete "fifth pile" returns across the state. Kinda analagous to the flaw in Gore's 2000 Florida argument, but that's a whole 'nother story...
The irony here is that most likely after tomorrow, Coleman will be down 200+ votes, and he will want to find as many ballots to include as possible. He is most likely done assuming his "duplicate ballot" argument fails to find any traction. So, given the (short-handed) Supreme Court's Mickey Mouse decision, all the incentive will be with Franken to play the obstructionist and refuse to agree to allow wrongly rejected ballots to be counted, especially in red rural counties. I don't buy the Rule 11 sanctions argument, and as Justice Page pointed out, clients are not necessarily subject to Rule 11 sanctions anyway, so there is nothing stopping either candidate from taking liberties.
Like mama said, be careful what you wish for...
December 18, 2008 8:10 PM | Reply | Permalink
It seems that there is a lot of wriggle room in the vague threat of sanctions by the Minnesota Supremes. Can you prove "bad faith"? Just what exactly can they do to him if he does act in "bad faith." If Coleman sees that his ship is sinking (like it is now), il va tenter son va-tout. N'en doutez pas.
December 18, 2008 8:31 PM | Reply | Permalink
Qui plus est, what if some of the counties acting in tacit accord with the perceived wishes of the Coleman camp decide that they want to play merry hob with this? The recount is tainted and Norm can't be accused of "bad faith". Might not matter with the way things are going right now, but ...
December 18, 2008 8:44 PM | Reply | Permalink
A flip side is that since counties originally had responsibility for deciding which ballots to reject, on their own (within state law), they should take responsibility now to correct their own errors, errors as determined by their own reviews already (mostly) done in accordance with the Board's directive/request.
December 18, 2008 11:11 PM | Reply | Permalink