- - Now it's on to Norm Coleman's challenges. This morning the State Canvassing Board will begin examining the disputed ballots put forward by the Republican incumbent. That comes after the board spent a day and a half processing most of the challenges put forward by Democrat Al Franken.
St. Paul, Minn. - - Coleman currently leads Franken by 362 votes - but that margin is sure to change. In the meantime, the campaigns are waiting for the Minnesota Supreme Court to rule on the fate of another batch of ballots. Secretary of State Mark Ritchie said the canvassing board has 20 hours of work left to do, and they'll stay late into the night on Friday to make sure they review all of the ballots. On day two of the State Canvassing Board's ballot review, the board removed many of the hiccups that slowed down the process the first day and started working with assembly line efficiency.
One reason for the faster pace is that members appear to have reached agreement on certain challenges. Another is that the Franken campaign started withdrawing a greater number of challenges. Many coming as the ballots were called out. However, there were still some ballots that stymied the board. Some were ballots where the voter missed the oval for any candidate. Minnesota Supreme Court Chief Justice Eric Magnuson said the board's chief intent is to set a standard for certain ballots and stick with it. "These are so subtle sometimes. We're trying our best," Magnuson said. "We're trying to be consistent."
The board processed a total of 418 Franken challenges through Wednesday. Coleman's campaign has double that number of challenges remaining. But the fate of 150 of those challenges could be determined quickly when the board rules on a Coleman campaign argument. Coleman attorney Tony Trimble is asking the board to consider whether local elections officials counted some ballots twice during the recount. On some occasions, elections workers have to create a duplicate ballot because the machine won't accept the original. Trimble said both the duplicate ballots and the original ballots were counted during the recount. Trimble is basing that argument on the fact that some precincts garnered more votes during the recount than on Election Night. "I mean if a precinct had, for example, 1,250 votes on Election Night and they're going to end up with 1,264, you've got 14 excess originals," Trimble said. "I think my youngest daughter could probably figure that one out."
Several members of the canvassing board didn't dispute that there may be double counting but are questioning whether it's their role to weigh in on the issue. Board member Edward Cleary, who is also a Ramsey County judge, said the Coleman campaign may be better off using the issue to contest the outcome of the election in court. "We keep coming back to the fact that there may be double counting and someday someone can air that out and make factual findings along those lines," Cleary said. "We're not that group."
If the canvassing board decides this morning that it wants to consider the issue of duplicate ballots, Franken's campaign may also bring forward several hundred more challenges. Franken's attorney, Marc Elias, said it's faulty logic to suggest double counting is the only reason there would be a greater number of votes counted during the recount than on Election night. He said other things could be in play like election machines failing to count certain votes. Elias also complained that Coleman's team is trying to change the rules after they agreed to include the original ballots before the recount started. "What you saw today in the canvassing board hearing, with this argument over allegations of duplicate ballots, is just another effort by the Coleman campaign to cast doubt on this election and to try to halt the count," Elias said.
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Minnesota Supreme Court weighs Senate absentees
Minneapolis-St.Paul NBC Channel 11
by John Croman
December 17, 2008-10:29 p.m.
ST. PAUL, Minn. -- In the best of worlds all valid absentee ballots would be counted in Minnesota's disputed US Senate election. But Senator Norm Coleman's attorney told the Minnesota Supreme Court Wednesday afternoon local election boards lack the power to resurrect wrongfully rejected ballots. "Even with the best of intentions, this could become Florida 2008," attorney Roger Magnuson told the high court, saying a move to add new ballots never counted on Election Day would undo 150 years worth of election history in the state. Magnuson was involved in the disputed presidential election in 2000, but the Florida remark caused him to get off on the wrong foot with Justice Paul Anderson. The justice quickly admonished him to avoid such comparisions. "I know you've been there and were involved but this is not Florida," Anderson remarked, "I'm just not terribly receptive to you telling us that we're going to Florida and we're comparing to that; this is Minnesota, we've got a case in Minnesota and let's argue Minnesota." Chief Justice Paul Magnuson and Associate Justice Barry Anderson excused themselves from the court's procedings because they sit on the state canvassing board, which continues to review hundreds of ballots challenged by the campaigns during the statewide recount.
The Secretary of State's staff estimated last week that more than 1,500 of the absentee ballots rejected on Election Day were disqualified wrongly, due to mistakes by local election officials (how would Mark "former? communist and Soros Puppet" Ritchie's staff know this?). Democrat Al Franken has pushed adding those ballots, which were never counted, back into the mix before the canvassing board certifies a winner. The state Canvassing Board encouraged local election boards to sift through the thousands of rejected absentee ballot packets they have in their possession, and determine which ones were thrown out or disqualified due to administrative errors. That prompted the lawsuit from the Coleman camp, which said it could result in a "crazy quilt" pattern of local responses.
Coleman's attorney Roger Magnuson said discrepancies over absentee ballots should be ruled on by a court in a "election contest," which is a civil suit filed after a winner is declared. Even if local election officials, who currently have possession of those rejected absentees, wanted to sort through them and count them the Coleman campaign argues there are no uniform guidelines in place for all 87 counties to follow. Franken's attorney Bill Pentelovitch told the court that the power to right "obvious errors" rests with those local election boards, who can submit amended election returns to the state after the fact. He said the thrust of previous court decisions was that every effort should be made to count valid ballots, and that individual votes shouldn't be forced into the court system to have their votes count.
Justice Helen Meyer at one point asked if county boards are free to act, and change their returns until such time the state's board has certified a winner. "What would prevent a county board from correcting an earlier report, by filing an amended report?" she asked, "And it's separate from the recount process altogether."
But Justice Lori Gildea told Franken's attorney that her State Statutes make it clear to her that only those absentee ballots that qualified on Election Day can be opened and submitted. "The legislature has defined the universe to be counted as ACCEPTED absentee ballots only," Gildea said, "So what I'm wondering then why would we look at whether or not an absentee ballot was properly rejected?"
Franken's legal team maintains that improperly rejecting a ballot constitutes an "obvious error" for purposes of righting wrongs. Justice Paul Anderson wondered aloud just what the "outer limits of obvious error" should be when it comes to deciding this case.
Both Coleman's litigator, Roger Magnuson, and Justice Gildea said the law limits the role of canvassing boards to double checking for "errors in tabulating" and mistakes in "recording" the vote totals. Gildea also quizzed Pentelovitch over what she saw as an apparent change in Secretary of State Mark Ritchie's rules for the recount. She pointed out that the Secretary of State's recount guidebook, published before the election, noted that rejected absentee ballots should not be part of the statewide manual recount process.
But Attorney General Lori Swanson disputed that notion, arguing that the Secretary of State's office has not changed the rules of the game when it comes to rejected absentees. Those ballots were not part of the statewide recount, she noted. The question at hand, Swanson asserted, is whether those wrongfully rejected ballots can become part of the canvassing effort, which is a separate process. Canvassing happens in all races, whether there's a recount or not.
The court took the case under advisement, after asking if there's any legal or constitutional deadline to declare a winner. They were told that, unlike the 2000 presidential election, there is none.
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