After finishing their review of Franken challenges, the state Canvassing Board spent the last hour of its day today arguing about the “duplicate ballot” issue I wrote about this morning. The facts and arguments were completely consistent with that earlier piece, so I won’t go over them again at any length here.
Most of the Canvassers seemed inclined to leave the issue to the courts, but didn’t make a ruling along those lines and agreed to consider the question again Thursday.
Coleman lawyer Tony Trimble said that the way the duplicates were handled created a great likelihood of double counting. His assistant, Matt Haapoja, said there were 150 incidents arising from this issue, where the number of original ballots didn’t match the number of duplicates.
Supreme Court Chief Justice Eric Magnuson conceded that the problem might be as the Coleman lawyers described, but that the Canvassing Board was limited to issues that could be resolved by looking at ballots to ascertain the intent of the voters, not issues that would require them to take testimony about what happened at specific precincts on Election Night.
If Coleman wants to pursue the issues, he implied, it will have to file an election contest and take it before a judge. (Irony here, four of the five Canvassers are judges, but they are mostly saying that they do not function as judges when they sit on the board.)
“I want to count all legally cast ballots,” Magnuson said. “I don’t want to count ballots twice. We’re arguing about the proper forum” for considering the duplicates issue.
Secretary of State Mark Ritchie, in a tone bordering on anger, reminded Trimble that the policy on how to handle the duplicate ballot issue in this recount was something the Coleman and Franken campaigns had not only agreed upon before the recount began, but had insisted upon against the warnings of both Ritchie and the election professionals around the state. Trimble said he wouldn’t have agreed to it if he had known the problems it would cause. Ritchie said the experienced professionals warned of exactly these problems. “I was not happy about this,” Ritchie said. “You insisted on this.”
Franken lawyer Marc Elias stressed that if the board decided to get into taking evidence about incidents that occurred on Election Night, there were hundreds more on issues beyond the duplicates and he would ask that the board take up all of them.
There was a near consensus on the board that the matter should be left to the courts. Supreme Court Associate Justice G. Barry Anderson was the member least convinced that there was nothing the board could do about the problem and most convinced that if they leave the situation alone it would cause some votes to be counted twice. “We are going down the road where we will have double-counting,” Anderson said. By the time they finished discussing the issue, it sounded like Magnuson was wavering. But, as I said, they postponed a decision.
In the hallway after the hearing, Elias said the new Coleman position on duplicates was more evidence that Team Coleman sees its former lead evaporating during the challenge process and was desperate.