Thursday 18 December 2008
by: Pat Doyle, Minneapolis Star Tribune
The canvassing board's (above) review of ballots has narrowed Norm Coleman's lead over Al Franken to fewer than five votes. (Photo: Bill Kelley / Minnesota Post)
In a ruling crucial to the disputed U.S. Senate election, the Minnesota Supreme Court Thursday rejected an attempt by incumbent Norm Coleman to block the state Canvassing Board from counting improperly rejected absentee ballots.
However, the court ruled that the campaigns of Coleman and Democrat Al Franken, along with Secretary of State Mark Ritchie and vote canvassing boards establish a uniform standard for identifying and counting such absentee ballots. The court said they should then be added to the tally.
As many as 1,600 absentee ballots may have been improperly rejected by local elections officials. With the candidates separated by such a narrow margin, the dispute over those absentee ballots posed a potentially deciding factor.
Also see below:
Coleman's Lead Dwindles to Single Digits After Day 3 •
In a dissenting opinion, Justice Alan Page criticized the order for requiring the candidates to agree on which absentee ballots were improperly rejected.
He said the usurps the authority of county canvassing boards to make that decision on their own.
It was not immediately clear how the Coleman campaign would respond to the ruling. It has the option of appealing to the U.S. Supreme Court, but one expert on constitutional law and elections said such a move would likely fail.
"They're asking that the Canvassing Board not take into account what I think everybody generally agrees are legal votes," said Guy-Uriel E. Charles, a visiting professor at Duke Law School. "The question is, if they are legal votes, why shouldn't they be counted? That presents a difficulty for the Coleman camp."
The Franken campaign wanted the state Canvassing Board, which is reviewing ambiguous ballots to determine voter intent, to count the improperly rejected absentee ballots as well.
The Coleman campaign opposed having the board count any of those ballots, saying it is not the proper body to settle that issue. Instead, it wants those ballots set aside and preserved in the event either campaign goes to court after the recount to get a judge to include them in the tally.
In objecting to the counting, the Coleman campaign argued that the state Canvassing Board violated the equal protection clause of the U.S. Constitution by not setting uniform procedures for counties to identify and count improperly rejected ballots.
But Charles said he doubts that argument would sway the U.S. Supreme Court.
"The equal protection issue goes against them. ... Their best argument is that some counties are going to count them and others aren't ... But the proper response to that argument is an order telling all the counties to count all legal votes."
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Coleman's Lead Dwindles to Single Digits After Day 3
Thursday 18 December 2008
by: Kevin Duchschere and Paul Walsh, Minneapolis Star Tribune
Lizard People, the Flying Spaghetti Monster and Frankenstein were among the candidates puzzled over today by the state Canvassing Board members as they spent their third day of awarding Election Day challenged ballots in the drum-tight U.S. Senate conte
After finishing off Franken's 420 regular challenges Wednesday, the board started the day on Coleman's 800 or so challenges. The Coleman campaign withdrew 409 challenges late Wednesday, after earlier restoring 204 challenges they reconsidered once they saw how the board was judging the ballots.
At day's end, Coleman held a single-digit lead over Franken.
Before offering new challenges today, Coleman disputed about 150 ballots that his camp says were double-counted. Signs reading "Count Every Vote Twice" and "I Voted Maybe Twice" appeared outside the hearing room this morning, suggesting a possible pro-Coleman demonstration later in the day.
Both campaigns also were awaiting a ruling from the state Supreme Court, which on Wednesday heard Coleman's argument that some 1,600 improperly rejected absentee ballots should not be counted and included in recount figures, on grounds that they were never technically cast in the election.
The Franken campaign contends that those voters shouldn't be disenfranchised because their ballots were mishandled. Coleman officials say those ballots should be included only in the event of a post-recount legal challenge, which most observers expect once the Canvassing Board declares a winner.
That may not be until after the New Year's Day. Ritchie said today that the board may plan to work Dec. 30 to deal with the most recent challenges registered by the campaigns.
The five-member board clipped along at a rapid pace, dispatching 125 ballots before breaking briefly to stretch at 10:30 a.m. Their work was aided by the fact that 77 of the ballots were challenges withdrawn by Coleman, 69 of which were votes the board awarded to Franken.
"I very much appreciate the withdrawals. This is much better for us, thank you," Ritchie told the attorneys for the campaigns.
But more time was needed to study a handful of quizzical ballots, leading to some light moments amid legal discussions on the personhood of fantasy characters.
One Bemidji voter blackened the oval for Franken, but also put an X through the oval and scribbled "Lizard People" on the write-in line. The board ruled twice Wednesday that writing in a person in addition to marking another oval cancels out the vote.
" 'Lizard People' is not a genuine write-in" because there's no such person, argued Marc Elias, Franken's lead recount attorney.
Wait a minute, said Chief Justice Eric Magnuson. "You don't know that there's not someone named 'Lizard People.' You don't."
"You're right, you don't know," chimed in Coleman recount attorney Tony Trimble.
"Isn't 'People' plural? How can you have an individual named 'People?' " asked Ramsey County District Judge Edward Cleary, a board member.
"I think it's silly too, but we have to judge on the face of the ballot," Magnuson said.
"If someone wants to make a statement of some sort, they may not get their vote counted," Ramsey County Chief District Judge Kathleen Gearin said.
Elias: "If we think it's just a statement, then I think it's [a vote for Franken]."
Trimble: "We know that 'People' can be a surname. And 'Lizard' can be a nickname."
The board finally sided with Trimble and declared it an overvote, not a vote for Franken.
Franken did better on a Sauk Rapids ballot that was marked for him but had "Flying Spaghetti Monster" and "FSM" written in other places. He also won a challenge on a Mankato ballot on which the voter had blackened his oval but extended his name to read "Al Frankenstin."
Trimble argued that the voter hadn't cast his vote for Franken, but for someone named Frankenstin. "The candidate is still identified as the candidate of the Democratic-Farmer-Labor Party," Elias countered. The board voted 3-2 to award the vote to Franken.
The five-member board on Tuesday and Wednesday dispatched 420 ballot challenges of "voter intent" put forward by Franken, helped in part by his decision to withdraw 79.
On those two days, most of the Franken challenges were resolved for Coleman, adding votes to the incumbent's column and i
Ritchie held firm that the Canvassing Board will finish its task of determining "voter intent" on disputed ballots by Friday and was prepared to deliberate into the night if necessary.
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