The Canvassing Board takes the Ballot Challenge!

Day one facts, estimates, impressions, analysis.

Point 1: The board and its posse of aides and reporters put in a long hard afternoon.
They got through about 160 ballots that had been challenged by the Franken campaign and moved a few into a special pile that they will decide later whether to consider. They have about 230 Franken challenges still to consider. Since they got through 160 in a half day, it seems possible that they will finish the Franken challenges Wednesday (although Franken may still be both withdrawing and reinstating challenges). More on that later.

Oh heck, we’ll get it out of the way now. One thing that happened on Day One is that the board finally made clear how it will treat certain kinds of challenges. For example, they had little interest in ballots where one oval was fully colored in and another was less than half colored in. They went with the fully-colored oval.

Here’s another example, and one that cost Norm Coleman several votes today. If a voter colored in the oval next to Coleman, then drew an X over the whole oval, they almost always ruled that the voter was trying to cross out the oval and retract the vote. (Personally, I wouldn’t have ruled them that way, if only one oval was colored in.) But once they decided to treat them that way, they made short work of several ballots that had similar issues.

So, at some point during the day, team Coleman realized: Holy moley, if that’s how they’re going to rule, we’ve withdrawn some challenges that we might win. So, during the day, when they were supposedly working on withdrawing more challenges, they actually added a couple of hundred back in. There was some complaining about this from Team Franken and some grumpiness on the board, but apparently there is no rule against it and no deadline for filing new challenges or refilling withdrawn ones. So, now that Franken’s folks know all this, they will probably rehabilitate some of their withdrawn challenges too, Franken lawyer Marc Elias said.

Point 2: You’re wondering who “won” the day. Anyone who answers that question is guessing. In my hastily phoned in mid-Tuesday update during the board’s first break, I said that things were going well for Franken. I still think so. For various reasons (excuses don’t matter) I didn’t maintain a full log of every ruling, and neither of the campaigns nor the board released firm numbers. But I estimate that about one in four of Franken’s challenges were upheld. In every case, that either gained Franken a vote (where the table judge in the first recount had ruled that the voter’s intent could not be determined, but the board decided it was a vote for Franken) or cost Coleman a vote (where the table judge had ruled for Coleman and the board decided intent could not be determined). I’m not sure I saw any double hits, where a vote that had been ruled for Coleman was turned into a vote for Franken.

Anyway, based on many statements by experienced election officials, I had been led to expect that very, very few challenges would be upheld. So, by my lights, Franken’s ratio of roughly 25 percent exceeded my expectations. But it doesn’t tell you anything bankable about where this is heading until we see both how many challenges Coleman brings to the table (he seems to be more than double Franken at present) and what portion of his are sustained.

I would also advise against paying too much attention to anyone who is keeping a running scorecard that purports to show who is ahead. Coleman had a 188-vote “lead” heading into this round. Team Franken has been claiming for weeks that, assuming every single challenge was rejected, they were actually “ahead” by a very few votes (usually estimated in single-digits). But if more of Franken’s challenges were successful than Coleman’s (as the AP story from last weekend and a Strib story Tuesday morning both suggested), and the Franken claim that he was already ahead are true, then he will be further ahead. Those are all big ifs for now.

But the Strib is also running a box on its home page that, as I write this, shows that Coleman’s lead had grown to 264. Presumably, this is the 188 he had yesterday, minus the challenges that were awarded to Franken, plus the challenges on which the board ruled against Franken (because those represented Coleman votes that had not been counted because of the challenge, and now are counted).

So, if you follow this scorekeeping method, Coleman’s lead will grow every day that the board is considering Franken challenges, then shrink every day the board is considering Coleman’s own challenges.

Point 3: I’m venturing into rude and perhaps politically incorrect territory here, and I mentioned it in my hasty mid-day post, but it’s hard for me not to notice voting patterns that suggest that Coleman and Franken each have a best friend on the board.

Until today, the board had managed to negotiate a unanimous vote on the issues that came before them, including the controversial vote to recommend that counties reconsider their disqualified absentee ballots. (The issue, by the way, is still probably the biggest game-changer out there.)

But today, there were several split votes, all of them by a 4-1 tally. (They had just started happening in my previous post; by day’s end I’ll estimate there were about nine such votes.) And on every one of them, it was either Ramsey County Judge Edward Cleary voting by himself for a ruling that would have favored Franken, or it was Associate Supreme Court Justice G. Barry Anderson voting by himself for a ruling that would have favored Norm Coleman. The Cleary protest votes outnumbered the Anderson cases.

Now you can say (and you should say, and I say it too) that the vast majority of the rulings were unanimous. No one is voting a straight ticket here. But on the closer calls, a Cleary-Anderson pattern is developing.

I’ll go a step further here. If you were to take into account the issues on which they spoke up and examined some of the arguments they made, you would might notice (OK, I noticed) a slight pro-Franken lean by Ramsey County Chief Judge Kathleen Gearin and an ever-so slight pro-Coleman lean from Chief Justice Eric Magnuson.

By the way, Secretary of State Mark Ritchie had said last week that he wasn’t sure what the board would do if it had any non-unanimous votes. That seemed strange. Can you imagine throwing out a ballot because one of the five members thought he couldn’t be sure of the voter’s intent? But when the split votes started happening, there was no discussion. Majority ruled.

Point 4: The deeper I get into this recount story, the more amazed I am at the number of ways there are to create controversy and confusion in the apparently simple act of voting.

Until a couple of days ago, I wasn’t even aware of the law that prohibits voters from identifying themselves on their ballots or of why anyone cared (see item 5 at the bottom of this post). But there were dozens of challenges based on that rule today, falling into various categories, and making another example of how the board set precedents early on that made all the later rulings quite easy.

It went like this: With one important exception (below), if a voter wrote his whole name on the ballot, it was disqualified. The exception was: if the voter wrote his own name in the write-in blank somewhere on the ballot, this was acceptable. One guy wrote his name in for every judicial race, and that was deemed OK. (Of course, the board didn’t really know whether the person was writing his own name in; it could have been his brother-in-law, but if it was written in a “write-in” blank, the ballot survived and the board would then decide for whom the voter had voted in the Senate race.)

There were many voters who wrote in celebrities, often for president. There were votes for Mickey Mouse, Brett Favre and God, among others. Franken challenged these (presumably the Senate vote was for Coleman) on grounds that the write-ins were identifying marks. No one on Team Franken ever actually alleged that Mickey Mouse was behind the scheme, only that it was somehow a signal of the identity of the voter. Judge Gearin referred to these as “Mickey Mouse challenges.”

If a voter wrote his initials near a place on the ballot where he had crossed out a vote to indicate he was changing his mind, the board decided (so far as I can tell, they made this rule up on the spot) that the voter was initialing the scratch-out to signify that it was a voluntary and intentional change of mind, and since that was a purpose other than to identify himself, the vote was counted. But if the initials appeared where there was no vote crossed out, they disallowed the vote because, as Magnuson put it, “I can’t for the life of me think of a reason for a voter to initial his ballot other than to identify himself.”

One voter not only signed his ballot (I’m assuming it was an absentee ballot) but had the signature notarized. The board had a good laugh over that one, and disqualified the ballot, thus costing Coleman a vote that the county recount judge had given him.

Point 5: First thing Wednesday, when the board reconvenes, it plans to discuss the issue of “duplicate” ballots. This may be the second biggest potential issue that’s still out there, but it’s complicated and this piece is long enough. So I’ll try to provide a backgrounder on the “dupe” question Wednesday and my MinnPost teammate Jay Weiner will pass along what the board decides to do about it.

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Comments (2)

  1. Submitted by K W Doten on 12/17/2008 - 12:31 pm.

    How can the board tell if the oval was filled in and then crossed out or marked with an X and subsequently colored in???

  2. Submitted by TJ Pavey on 12/17/2008 - 07:49 pm.

    You can’t determine if the X was made first or second. So, you should fall back to the fact that it is improperly filled in and therefore should not count. If voter intent is cannot be determined you cannot count it as a vote. That seems like a simple ruling to me.

    What I don’t understand is why ballots with names or initials are thrown out. The person that had his notarized went to a lot of trouble to have his vote counted and it was not.

    The idea of having this long and detailed recount is to get the best count we can of all votes that occurred on election day. Throwing out legitimate and easily determined votes based on unrelated technicalities is not in the spirit of a democracy. This is why I truly hope that they require disqualified absentee ballots to be resorted. If the election judge improperly disqualified them then those votes also deserve to be counted. We cannot have election officials adding their own rules to the list that is made for disqualifying ballots.

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