Why Coleman Should Fight On

by Pejman Yousefzadeh on April 18, 2009

I am, to say the least, skeptical that Norm Coleman will be serving Minnesota as its Senator when all is said and done in his fight with Al Franken. But the Wall Street Journal reveals why Coleman should not give up his fight in the recount battle:

Even after the recount and panel-findings, the 312-vote margin separating the two men equals about .01% of the 2.9 million votes cast. Even without any irregularities, this is as close to a “tie” as it gets. And there have been plenty of irregularities. By the end of the recount, the state was awash with evidence of duplicate ballot counting, newly discovered ballots, missing ballots, illegal voting, and wildly diverse standards as to which votes were counted. Any one of these issues was enough to throw the outcome into doubt. Combined, they created a taint more worthy of New Jersey than Minnesota.

The Coleman camp pushed for resolution of these problems during the recount, but it was stymied by a state canvassing board that cared more about preserving its “Minnesota nice” reputation than about making tough calls. The state Supreme Court also punted difficult questions. The mess then landed with the three-judge panel overseeing Mr. Coleman’s contest trial, a panel that seemed out of its depth.

Case in point: the panel’s dismal handling of absentee ballots. Early in the recount, the Franken team howled that some absentee votes had been erroneously rejected by local officials. We warned at the time that this was dangerous territory, designed to pressure election officials into accepting rejected ballots after the fact.

Yet instead of shutting this Franken request down, or early on issuing a clear set of rules as to which absentees were valid, the state Supreme Court and the canvassing board oversaw a haphazard process by which some counties submitted new batches to be included in the tally, while other counties did not. The resulting additional 933 ballots were largely responsible for Mr. Franken’s narrow lead.

During the contest trial, the Coleman team presented evidence of a further 6,500 absentees that it felt deserved to be included under the process that had produced the prior 933. The three judges then finally defined what constituted a “legal” absentee ballot. Countable ballots, for instance, had to contain the signature of the voter, complete registration information, and proper witness credentials.

But the panel only applied these standards going forward, severely reducing the universe of additional absentees that the Coleman team could hope to have included. In the end, the three judges allowed only about 350 additional absentees to be counted. The panel also did nothing about the hundreds, possibly thousands, of absentees that have already been legally included, yet are now “illegal” according to the panel’s own ex-post definition.

While the article alludes to the possibility that the case may go to federal court, I don’t think there is much hope for that. But at the very least, Minnesota’s state supreme court has a lot to chew on. Until it does, Coleman may be well-advised not to give up on his claim.

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