A lawyer for the Hubbard Broadcasting TV stations (the biggest of which is KSTP-Channel 5 of the Twin Cities) is seeking access, under the state freedom of information statutes, to all of the rejected absentee ballots from the 2008 Senate election and the outer envelopes. These ballots presumably contain flaws that caused them to go unopened and uncounted. MinnPost teammate David Brauer noted this atop today's edition of the Daily Glean.

The letter requesting the data specifies that the stations would not try to ascertain which voters voted for which candidates (that data would violate the privacy of the voters) although it would take some high-stepping to figure out how that privacy could be safeguarded if a news organization had the ballots and the envelopes. The request has been submitting to every county in the state.

A story about the request on KSTP-TV's website says: "we want to count the ballots and try to determine how different counties decide to reject absentee ballots."

With the MN Supreme Court ruling in the recount/contest case expected any day, the Hubbard project could offer only an after-the-fact analysis of variations in the treatment of absentee ballots across county lines. Those variations, which undoubtedly occurred, have been the heart of Norm Coleman's recent legal argument.

The request is reminiscent of a project undertaken by a consortium of news organizations after the messed-up Florida recount in 2000. The consortium counted the ballots by various standards and found that depending on which standard was used, either George W. Bush or Al Gore could have been determined to have won Florida, and therefore may have been the rightful winner of the 2000 presidential election. (I find that this fact is often misstated by Bush supporters, who claim that the media recount showed Bush to be the rightful winner.)

The Hubbard project tells us something we should already have guessed: That, like Florida 2000, Minnesota's '08 Senate election will have a media afterlife. Once the privacy rights of voters (in this case, voters whose votes weren't counted) have been protected, I have no problems with such a media inquiry.

All of the rejected Minnesota absentee ballots have been examined more than once and rejected for flaws on the outer envelopes that violated, according to election officials, some requirement of the absentee voter law.

If I could get a little philosophical about this, after so many months of recount/contest/appeal (which I am preparing to do anyway as the case draws to a close), one thing I have learned from this experience is that elections are not as perfect as we would like. A really, really close election is like one of those stress tests that the feds just performed on the banks, and it tells you where the weak spots are in your system.

If you have 3 million ballots, including 300,000 absentee ballots, considered at dozens of counties and thousands of precincts around the state, and you end up with a margin of one-hundredth of 1 percent of all votes cast, and then you bring in corps of high-priced lawyers whose job it is to go over every aspect of the system with electron microscopes looking for flaws that worked to the detriment of their client, they will find flaws. And they will create doubt about whether any particular version of the result is truly accurate down to such a tiny margin for error. That is their job, and they have done it.

Let's try to bear this in mind when it is some other state's turn to go under the microscopes. They may look from a distance like dolts who don't know how to count votes, but chances are they just had a really close election.

People of good will should want to know what flaws exist in their election system so they can improve it. That process is under way. The first effort at an omnibus election reform bill was vetoed by Gov. Pawlenty at the end of the recent session, but various of its provisions will be back and Minnesota will eventually improve its system for assessing absentee ballots. One of the biggest such improvements -- authorizing early voting instead of requiring absentee voting -- didn't even make it into the bill.

Major improvements can be made without legislation, simply by increasing the training of county absentee ballot boards on applying the standards uniformly across jurisdictions.

Whatever KSTP and its sister stations come up with from their project may help reinforce that need, although the need is already clear.

But this is the hard part to handle, and I don't guess it's a message welcome to fans of either Franken or Coleman: Once the flaws have been found and the doubts have been raised, it may be impossible to know with any level of complete certainty and confidence who got the most votes. 

Indulge me a stupid sports analogy: Suppose after a really close baseball game, the loser studied tape of every ball and strike call, looking at each pitch from several camera angles, trying to find some that went against them that could arguably have gone the other way. (That team would not, of course, be interested in any calls that went in their favor that could arguably have gone the other way.) Given the variations we have all seen between the way different umpires call balls and strikes, and even the way the same ump calls them on different pitches, it seems a certainty that the losing team can put together a case that if they had gotten certain calls that they reasonably could have gotten, they would have won the game.

That problem -- I'm back to a real election now -- does not arise with a normal margin of victory. But with a margin of 312 votes out of 3 million cast, it does. That is unsettling, but there you are. You could have a system that requires a do-over any time the election is very close, but that is not the system we have, and it seems kinda crazy.

Minnesota has one of the best election systems in the country (much, much better than Florida's in 2000). There has been no evidence of fraud in the Minnesota case nor partisan cheating in the counting. Thankfully, there have been no partisan riots attempting to intimidate the recounters. And the various rulings have been mostly unanimous across party lines -- all points of which we should be proud.

But a flaw in our system -- chiefly regarding the disparate treatment of absentee ballots -- has been highlighted.

The counties, the Canvassing Board and the Election Contest Court have done what they thought they could, within the state election statutes, to get the most accurate count they could, and it shows Al Franken with a 312-vote margin.

Norm Coleman has contested the result in every way available to him under Minnesota's system. I defend his right to have taken every one of those steps. I believe Team Franken would probably have done the same if the results had been reversed.

The result, to date, is the 312-vote margin for Franken. Coleman was entitled to at least one more step, and he took it, asking the Minnesota Supremes to consider whether the three-judge-panel applied state law correctly. That ruling will come any day now. Based on all the hints available, including the questions the justices asked at the oral arguments, neutral observers believe the Supremes will uphold TheThreeJudges.

Coleman has a legal option or two left that he could pursue, but they are prohibitive long shots and they probably would not delay the seating of Franken in the Senate. My best guess is that within a few days of the next ruling, Coleman will make a gracious concession statement, and that will end it.

(I should have written this the other day, when I talked about the possibility of delay at the Pawlenty level, or of a filibuster in the Senate. If Coleman concedes, all of those possibilities go away and the thing is truly over -- except for things like a KSTP review of how the election might have turned out if the ballots had been counted differently.)

Coleman will not have to say that he believes Franken actually received the most legal votes. Perhaps he will always harbor doubts about it. But he will have had every opportunity afforded to him by the Minnesota system to prove that in fact he won the election, and -- assuming the Supreme Court rejects his appeal -- he will have failed to do so. And that will be as close to certainty as we can probably get.

When Al Gore has occasionally been confronted by the criticism that he didn't fight hard enough in the post-Florida situation he has said (this is a paraphrase from memory): I took it all the way to the Supreme Court. What was left, an armed coup?