Can We Still Get Senator Al Franken?

by Paul Hogarth, 2008-12-16

The last unresolved election of 2008 may finally come to a close this week, as the Minnesota State Canvassing Board meets today for the U.S. Senate recount. While the current tally gives Republican incumbent Norm Coleman a 188-vote lead, recent events suggest that Democrat Al Franken may emerge victorious. First, the Canvassing Board made two critical decisions last week that will help Franken: (a) count the 133 missing ballots from Minneapolis, and (b) request that counties find which absentee ballots were improperly rejected. The latter is key, because it will add about 1,600 votes – prompting Coleman to pull another Florida by suing to stop the count. Now the Canvassing Board must review the roughly 3,000 “challenged” ballots (most of whom are frivolous and the voter intent is clear), and plans to complete the job by Friday. But while the Associated Press predicts Franken could net about 300 votes through this step, a bigger yield should come from the absentees. Which is why Coleman has tried to stop them from being counted.

As I’ve written before, I only have the best things to say about Minnesota Secretary of State Mark Ritchie – who has conducted this politically-charged recount in a fair and even-handed manner. I had always assumed California was lucky to have the best Secretary of State (Debra Bowen), but now I’ve come to the conclusion that she has stiff competition. But for the nightmares of Florida 2000 (Katherine Harris) and Ohio 2004 (Ken Blackwell), I doubt we would have cared who’s the state’s chief elections officer. But it’s times like these when it truly matters to have someone who (gasp!) wants every vote to be counted.

On December 12th, the State Canvassing Board – which consists of Mark Ritchie, two Ramsey County judges, and two Minnesota Supreme Court justices (both appointed by Republican Governor Tim Pawlenty) – unanimously made two decisions that will probably make or break the election result. First, because Minneapolis failed to find 133 ballots that were lost during the hand recount, the Board chose to include the Election Night totals for that very liberal precinct. Second, they requested – but cannot legally require – every county to review all discarded absentee ballots, and count the ones that were improperly rejected.

The latter is key, as the outcome may hinge on these uncounted ballots. Minnesota law gives four reasons why to reject an absentee ballot, or else the vote must be counted. Some counties had started sorting their discarded absentees, and found 600-odd ballots rejected via clerical error. It’s estimated up to 1,600 were mistakenly rejected statewide, and these voters were also more likely to support Franken. The Franken campaign knows it, and launched a PR effort last week to demand that these votes be counted. The state Attorney General agrees, but the Canvassing Board cannot legally require them to do so. Only a court order can mandate it.

Coleman, on the other hand, has borrowed the George Bush playbook – and is now suing to stop these votes from being counted. Why? His lawyers claim there is “no uniform standard” on how to sort the rejected absentees, and the state Supreme Court will take up their case tomorrow. Ironically (and not co-incidentally), this is the very same legal argument that a 5-4 majority of the U.S. Supreme Court made in Bush v. Gore that halted the Florida recount. Have we learned anything in the past 8 years?

Moreover, there’s already a “uniform standard” for counting the votes. Section 203B.12 of the Minnesota Election Code says an absentee ballot must have: (1) consistent name and address info for the voter, (2) the voter’s signature, (3) the voter must be registered to vote, and (4) the voter has not already voted at a polling place. “There is no other reason for rejecting an absentee ballot,” it says. “In particular, failure to place the ballot within the security envelope before placing it in the outer white envelope is not a reason to reject an absentee ballot.” All the counties have to do is sort the rejected absentees, and see if any ballots were rejected – despite satisfying all four basic requirements under the code.

Meanwhile, the Canvassing Board meets today to review all the “challenged” ballots that were not included in the recount total – because either the Coleman or Franken campaign questioned the voter’s intent. Over 6,000 ballots were contested, and as I’ve written before, each side abused the process – with the vast majority of these challenges are frivolous. Secretary of State Ritchie has asked the campaigns to grow up and withdraw frivolous challenges – something that each side has done, with the Coleman campaign generally following Franken’s lead. Right now, about 3,000 challenged ballots remain.

I don’t expect the “challenged” ballots to make a huge difference, because so many of them have no real merit. But because Coleman raised more challenges, I expect Franken will pick up more votes. The Associated Press reviewed 5,000 of them, and came up with the following conclusions: (a) in ballots where the voter intent is clear, Franken will net 200 more votes; (b) 400 Franken votes are being held up because of stray marks and 300 Coleman votes – which would net Franken another 100 votes; (c) 600 ballots are unclear and may be discarded altogether – although Franken has a slight edge in that category.

If the AP reports are accurate, and the state Supreme Court rejects Coleman’s lawsuit to stop counting the votes, we may easily have Senator Al Franken – capping what has been a remarkable year of change.