However unlikely it may seem at the beginning, if all goes according to plan, this post will eventually shed some light on at least one of the reasons that Al Franken is winning the election contest.

In 1975, a bitterly fought election campaign occurred in the Washington County (Minnesota) township of Grey Cloud Island for the (I'm sure very important) office of township supervisor.

A Grey Cloud Island Township woman (the woman is not named in the court ruling that eventually arose from this matter, so I'm just going to call her Mabel) received an absentee ballot without properly applying for it and therefore without making the required pledges that she was a registered voter, a resident of the township and so forth, all of which are required before an absentee could be issued. The Grey Cloud Island Township clerk actually handed a blank absentee ballot to Mabel's husband. Perhaps with all good intentions and hoping to save trouble and bother for Mabel, the clerk also kindly signed the ballot, in advance, indicating that he had witnessed Mabel's vote (to confirm, he hadn't witnessed her vote, Mabel hadn't even received the ballot yet when the clerk signed the blank ballot).

Mabel filled out her ballot and put it in the return envelope, as required but did not sign the envelope as required by law. In short, Mabel and the clerk did almost nothing right and those of us who have been living in Recountland these last months know that her ballot envelope should have been roundly and summarily rejected. The election judges couldn't have known about the bad witnessing, but they should have noticed that the envelope wasn't signed and they should have put Mabel's envelope into the do-not-count pile. But, as you may have surmised, the election judges didn't do that. They opened Mabel's flawed envelope and put her ballot in with the others to count.

The day after the election, the Grey Cloud Island Township Canvassing Board met and certified that in that township supervisor race, candidate Homer Gannaway had received 102 votes while his opponent, Thomas Bell, received just 101. Perhaps you saw this coming when I obsessed on Mabel.

Mr. Bell contested the result (much as Norm Coleman has contested the Minnesota Canvassing Board certification of Al Franken) and, as in the current case, a full trial was held during which, among other things, the facts about Mabel's bad ballot were put into the record. But the contest court ruled that Mabel's vote couldn't be removed from the count.

Important precedent

Mr. Bell took his case to the state Supreme Court (wouldn't you?) where he not only lost again, but created an important precedent on the meaning of Minnesota law on the subject of flawed absentee ballots.

Bell v. Gannaway (PDF) was a split decision. But the court's majority made several rulings that are now standing in the way of Team Coleman's motions and arguments. Basically, ever since Franken pulled ahead in the count, Coleman has been trying to get either or both of two things. He wants the court to adopt a lenient standard for considering the roughly 12,000 absentee ballots that were rejected on Election Night because of various flaws of signature, registration, witnessing or other requirements for absentee voting, and/or Coleman wants the court to acknowledge that many absentee ballots counted before the contest phase of the current process were flawed, were judged against a low standard of compliance with the requirements, and perhaps should be in some way uncounted (or have so polluted the pile of counted ballots that the whole election should be re-run).

Unfortunately for Coleman, the Bell v. Gannaway court messed up his arguments coming and going. The court wrote that while adult Minnesota citizens have a right to vote, voting absentee is more of a privilege than a right and that the state must insist that the absentee voter fulfill all the special requirements for applying for a ballot, filling it out it, signing it, having it witnessed and sending it in. Said the Bell court, all the crossing of t's and dotting of i's "must be held to be mandatory" and voters seeking the privilege of voting without coming to the polling place on election day "must be held to a strict compliance" standard." Bell v. Gannaway may be new to you and me, but in Minnesota election law cases, I gather it comes up, and its "strict compliance" standard on absentee ballots is cited by the courts as the law of the land whenever someone argues for a lesser standard. Bell's "strict compliance" langauge has been thrown in Team Coleman's face by the Franken side or even by the judges on several occasions.

In their famous (or, if you are rooting for Coleman, infamous) order of Feb. 13, the ThreeJudges cited Bell v. Gannaway at least four times (I may have missed more) in ordering a strict compliance standard and rejecting Coleman’s argument that, to make up for all the bad absentee ballots that might already be in the count, they had to allow hundreds, maybe thousands of additional ballots. The case has been downhill for Coleman ever since, and Coleman attorney Ben Ginsberg has called repeatedly for the judges to revisit what he always calls the "Friday the 13th" order and come to a different conclusion. So far, not yet. The judges haven't wavered from the Bell v. Gannaway standard of mandatory, full compliance standard for any rejected absentee ballot envelopes that Coleman wants the court to open and count.

But then, when the 1975 Minnesota Supremes got to the question of what to do about Mabel, they reversed field (sort of). The Grey Cloud Island election judges should not have opened Mabel's ballot, but they did. Mr. Bell could have had an observer present who could have and should have insisted that the judges throw Mabel's ballot out. But he had no such poll watcher and missed his chance. Now Mabel's ballot is commingled with the other unflawed ballots. So, while acknowledging the awkwardness, the Bell majority wrote:

"...We are compelled to hold, as did the trial court, that contestant's challenge to this absentee ballot came too late."

In summary, the holding of Bell v. Gannaway is that absentee ballots should be held to an unforgiving high standard of compliance when the ballot is still in the envelope. Election judges should scrutinize the envelopes closely and the candidates should have poll-watchers on hand to make sure bad absentee ballots don't get counted. But once the ballot is removed from the envelope and commingled with the other ballots, you are stuck with it and cannot go back no matter what subsequent investigation might show about the inadequacy of the absentee voter application.

Late arguments

Over recent days, Team Coleman has often faced the criticism that he is raising his arguments too late. This is a big one. Judge Kurt Marben (one of the ThreeJudges hearing the contest) specifically asked Team Coleman why the court should not follow the Bell v. Gannaway precedent and rule that challenges to the acceptability of absentee ballots must be made before the ballot gets into the ballot box.

I mentioned above that Bell v. Gannaway was a split decision. Justice James Otis, with the agreement of Chief Justice Robert Sheran, wrote rather plainly:

"I cannot agree that a ballot which is characterized by the majority as 'clearly invaild' should determine the outome of an election (as it quite obviously does in this case), where the invalidity is the result of the voter herself flagrantly violating the law...Notwithstanding the fact that the rejection of the illegal ballot would result in a tie vote and that the election would then be decided by the toss of a coin, such procedure would at least give effect to the election laws, maintain the integrity of the ballot, and allow the controversy to be resolved in a democratic manner."

But the court majority disagreed and essentially made (or clarified) the law of the land for Minnesota on the question of what to do when improper absentee ballots have already been counted. Norm Coleman was still in law school when that case came down (he moved to Minnesota the following year). Now, 34 years later, this case out of Grey Cloud Island Township is a significant impediment to his return to the U.S. Senate.