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Franken-Coleman recount: Busy days today and Tuesday as campaigns jockey on challenged ballots and court review of procedures

The Minnesota Supreme Court today gets its first crack at the recount, now that the Coleman campaign has asked it to countermand Friday’s Canvassing Board action. On Tuesday, the board will begin considering more than 1,000 challenged ballots.

The Franken-Coleman recount saga, the day ahead:

1. The Minnesota Supreme Court will have its first crack at the recount today. The Coleman campaign filed papers on Saturday asking the high court to countermand what the Canvassing Board did on Friday, when it recommended that every county take another look at rejected absentee ballots to see if there were some that should have been counted, to count those ballots and to update their previous vote totals based on the new totals.

Assuming the Supreme Court justices can get to the office today, they will probably at least discuss the question, possibly schedule a hearing on it and/or ask the parties for briefs. Team Coleman hopes the court will issue an immediate order stopping the reconsideration of the absentee ballots (ABs) while it contemplates the Colemanian arguments.

The chief argument at this point is there is not a specific uniform standard for the counties to use in deciding which ballots were incorrectly rejected on the first round. State law specifies four reasons that ABs should be rejected. But Coleman attorney Fritz Knaak has argued there is still a lot of room for counties to interpret those criteria differently, and the  campaign wants the court to issue clearer guidelines.

An underlying argument that Knaak has been making all along is that the rejected ABs should not be part of the recount/Canvassing Board process at all but should be handled by the post-recount “election contest” rules that go through the courts, not the Canvassing Board.

Note: Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson are also members of the Canvassing Board. If they participate in the court’s deliberation on Knaak’s petition, they will be reviewing a decision they themselves helped make.

It’s widely expected that they’ll recuse themselves on this one (it’s entirely up to them to decide when to recuse), but the question will keep arising as the courts get drawn more deeply into the case.

Knaak has scheduled a 10 a.m. press briefing to update the matter.

Meanwhile, county by county, election officials are trying to figure out what to do with the ABs.

According to Attorney General Lori Swanson, they are not required to reconsider the Election Night decisions made about the ABs, but there’s nothing to stop them from doing so and revising their earlier totals. Likewise, the state Canvassing Board cannot order them to do so, but they can suggest it, which is what they unanimously did on Friday.

Each county board has also received a letter from the Coleman campaign advising them not to do so, at least not yet. Some counties seem to be proceeding under the Canvassing Board’s suggestion, some are sorting their ballots but not counting them, and some are awaiting further guidance or inspiration.

Final note on that one: In the case where a county decides not to reconsider its ABs, any voter who feels disenfranchised — and either campaign — can go to court and a judge to order the county to do so. But that process would feed into a post-recount election contest.

3. Over the weekend, both campaigns continued to withdraw challenges to ballots that they had made earlier. At one point, more than 6,000 ballots had been challenged. Secretary of State Mark Ritchie has been urging the campaigns to withdraw frivolous challenges and get the total down to a more reasonable number before the board starts considering the challenges Tuesday. He would like a total of 1,000 or fewer challenges.

On Sunday the Franken campaign announced that it would get its challenges down to 500. Team Coleman said it couldn’t get it down that far but might get its challenges down to 1,000 or so. The lower numbers make it more likely that the board will be able to complete its review of challenged by the end of this week, which is Ritchie’s goal.

4. The Associated Press made its own review of all the challenged ballots, back before so many had been withdrawn. Its assessment looks good for Franken, and the Franken campaign declared that AP agrees with it, that it will likely be ahead after the challenges are resolved, although the AP story certainly didn’t say so clearly.

But it did seem to say that Franken stands to pick up more than 200 net votes, which is what it would take for him to pull ahead, before the ABs are considered. If that’s right, it will be a huge story (since there’s never been a count showing Franken ahead) and also will have a huge impact on the arguments the two sides make about ABs.

5. By the way, if you do read the AP story, you’ll find that a significant number of ballots are challenged under the rule that voters cannot make identifying marks on their ballots. The Canvassing Board will rule on whether those marks are truly “identifying,” but I wondered what that whole thing is about. Why would a voter want to put his identity on his ballot and why would the state want to ban it?

Apparently it goes back to the days of rampant vote-buying. Corrupt parties would pay voters to vote for their ticket, and they would give the bought voter a code or mark they could put on the ballot so they could prove they stayed bought and voted right. (Presumably the corrupt buyer had an agent at the counting so they could check up.) In an effort to discourage this charming scheme, the state adopted laws banning identifying marks on ballots.

The relevant Minnesota law says that the entire ballot should be thrown out if it is marked “in a manner indicating that the voter intended to identify the ballot.”