Franken wins key — but provisional — victories at Canvassing Board

Herewith, six points of analysis from Friday’s (fairly) significant meeting of the state Canvassing Board:

Point 1: The Al Franken campaign won two significant rulings before the Minnesota Canvassing Board Friday morning, but, as with so many aspects of the recount story, they are best viewed as provisional victories.

Point 2: The smaller of the rulings is this: The Canvassing Board will count the 133 “missing” Minneapolis ballots according to the way they were counted by the machines on Election Night.

Since those ballots, which include a net lead of 46 votes for Franken, were already included in the ongoing tally, this decision won’t reduce Norm Coleman’s lead. But if the canvassers had bought Coleman’s argument that “missing” ballots shouldn’t be counted at all, that would have added 46 net votes to Coleman’s lead.

Fritz Knaak: No detailed criteria.
MinnPost photo by Jay Weiner
Fritz Knaak: No detailed criteria.

On the other hand, the Coleman legal team said again Friday afternoon that they disagreed with the ruling and were prepared to take the matter to court. There is almost nothing that the county or state election authorities can decide that can’t become the subject of a court review and can’t ultimately be appealed, which is why, unfortunately for the recount-weary public, every development should be viewed as provisional.

Point 3: The second Canvassing Board decision was potentially much bigger (no one knows whether it might cause the lead to change hands). The canvassers unanimously voted to encourage (they were advised that they lack the power to order this done) every county canvassing board to review the absentee ballots (hereafter ABs) that were rejected on Election Day, sort them into piles according to the reasons they were rejected, create a pile that were improperly rejected, open those ballots, count them, and send a revised total to the state board which will then probably include the revised count into a new statewide count before they certify the final (not really final because it can still be appealed) result.

This is pretty much what Team Franken wanted.

Some analysts seem to think the counting of the rehabilitated ABs will favor Franken. Team Coleman disputes that.  But because Franken is behind in the (incomplete) running tally, (almost) anything that brings in previously uncounted ballots to be counted probably favors Franken, and the more ballots the better.

Al Franken
Al Franken

Team Franken had previously projected that about 1,000 of the disqualified ABs had been rejected in error. Deputy Secretary of State Jim Gelbmann projected, based on counts made by the counties that have already sorted their ABs, that about 1,587 ABs had been wrongfully rejected statewide. The breakdown of those ballots may constitute the biggest remaining possibility that Franken could pull into the lead.

A few seconds after the board adjourned, Franken attorney/spokester Mark Elias called the rulings “a great day.”

Still, some counties balked last week at the suggestion that they revisit the absentee ballots, and this morning’s action will not force them to do so. A few minutes after the board adjourned, Secretary of State Mark Ritchie faced the media hordes and said that most of the counties that were reluctant to start sorting ABs were looking only for a clear signal from the state Canvassing Board, and he said Friday’s vote constituted that signal.

Point 4: Team Coleman announced about an hour later that it is advising every county not to do what the state board is recommending, and said it would file an action with the state Supreme Court, before the close of business today if they can get it done, asking the court to get involved. Coleman has argued all along that the issue of disqualified ABs should be kept out of the recount process altogether (leaving them as potential matters for post-recount court challenges).

But their argument changed Friday afternoon to the issue of consistency. There is no single state standard that has been set for how the counties should decide whether a given AB was improperly disqualified.

This depends on what level of detail is required to decide, but at some level it is certainly true. Coleman recount attorney Fritz Knaak’s argument is that, in the absence of detailed criteria, a ballot with, let’s say a date missing next to one of the signatures, might be counted as valid in one county and disqualified in another.

Knaak gave specifics. In Gelbmann’s presentation to the board, he said that in Duluth alone, 127 absentee ballots had been disqualified because either the voter, or the witness, or both had failed to date their signatures. The form does ask for the date. But, Gelbmann said, no rule or statute specifically requires that absentee voters date their signatures. He implied that those 127 disqualified ballots would be reinstated and counted.

Norm Coleman
Sen. Norm Coleman

Knaak’s point is that no uniform rule tells the counties whether undated signatures are grounds for disqualifying a ballot. He said that in Scott County, several ABs had been disqualified because in the line where the voters and witness are supposed to list their addresses, they gave their street address but not the city in which they live. At least some instances, Knaak said, where a spouse was the witness for the voter, the same address appears twice, but one of the spouses neglected to list the city.

Yet, Knaak said, Scott County has already reconsidered its ABs and decided that those disqualified for lack of a town name in the address should stay disqualified. There is no clear statewide guidance on how the counties should decide these questions, so each county would decide for itself and undoubtedly decide differently from other counties.

“There now exists more than 87 different standards for how ballots will be included in the fifth pile,” Knaak told the assembled media Friday (the fifth pile refers to the pile for erroneously disqualified ballots.

He’ll ask the Supreme Court to lay out precise guidelines for all counties to follow.

(Of course, Knaak did not point out that the problem he highlights was not created by the recount. Each county was left to its own guesses about proper standards when they sorted the acceptable from the unacceptable ABs the first time.)

Later Friday afternoon, Franken lawyer Elias replied to Knaak, thus: “This is all just Smoke and mirrors… They are hoping to run out the clock. They are desperate to do something to keep these ballots from being counted.”

Elias said there is a uniform standard, which is the election law that was in place when the first count was done. It provides four legitimate reasons for disqualifying an absentee ballot. Any ballot that doesn’t suffer from one of those deficiencies should be counted.

Point 5: Almost every Canvassing Board member offered some tough talk to the campaigns about continuing to withdraw frivolous challenges. As of the time of the meeting, the number of challenges had shrunk from its all-time high of 6,655 down to 4,472.

But most of the challenges are still not what the board members consider serious. The members took turns guilt-tripping the campaigns and complaining that they will not be able to give proper consideration to the serious cases and finish their work on time unless the campaigns continue to withdraw challenges.

The job of deciding the challenges is set to begin on Tuesday and, according to the legally mandated schedule, conclude next Friday, Dec. 19. Ritchie said several times that this deadline would be met, although it seems far-fetched at the moment that it can be done.

Point 6: The board took only two votes, and both were unanimous.
There has yet to be a non-unanimous vote. Still, the issue of partisanship hangs in the background and will continue to do so.

As you probably know, the board consists of Secretary of State Ritchie, a DFLer, Supreme Court Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson, both Republicans appointed by Gov. Tim Pawlenty, plus Ramsey County Judges Kathleen Gearin (who was elected to the bench, with no known partisan identification) and Edward Cleary, who was appointed by Gov. Jesse Ventura and also has no known partisan background.

Those (including myself) who worry about the ability of anyone to avoid seeing things through a partisan prism, are watching to see whether Ritchie starts finding himself favoring Franken’s positions and Magnuson and Anderson start favoring Coleman’s positions and whether anything can be figured out about Gearin’s and Cleary’s sympathies.

The board members themselves seem anxious to keep things unanimous, avoiding perceptions of partisanship. What I saw today was that Gearin, Cleary and Ritchie seemed more anxious to communicate to the counties that the absentee ballots should be reexamined. Gearin, for example, said she couldn’t imagine any reason that the counties wouldn’t do it. Cleary said that if some counties declined to fix their mistakes, legal, qualified voters who had done everything right would be “disenfranchised.”  Ritchie used the term “strongly urge” to describe the board’s suggestion to the counties.

Magnuson and Anderson seemed to want to avoid anything that sounded like pressuring the counties. Magnuson noted that there was another remedy. If a county declined to reconsider its ABs, either campaign or any voter whose vote had been disqualified could take the matter to court and a judge could order the county to reconsider. Anderson pushed back (seconded by Magnuson) against Cleary’s original motion, which suggested that the board would accept any revised tallies it received. That part was dropped with the understanding that the board would consider such revisions as it received them.

But, through diplomacy, a motion was created that preserved, for now, the unanimity of the board.

Comments (11)

  1. Submitted by Greg Laden on 12/12/2008 - 04:55 pm.

    Let’s keep in mind that Franken got what he was looking for, but to begin with Franken has been looking for something very basic … that every vote be counted. Colemen, not so much.

    But this is complicated. On my web site, I ask the question: Is The Criminal Genius Vizzini on the Minnesota Election Canvassing Board?

  2. Submitted by Peder DeFor on 12/12/2008 - 07:25 pm.

    Does anyone else wish that we had gone with a special election like Georgia did? If the final margin falls below fifty votes or so will the losing side ever accept the result?

  3. Submitted by Eric Paul Jacobsen on 12/12/2008 - 10:04 pm.

    You raise an important question, Peder DeFor, when you wonder whether the losing side will accept the result of this recount. In fact, TWO losing sides are going to have to accept it. Remember that this was a three-way race: Coleman, Franken, and Dean Barkley. The winner of this race, whether Coleman or Franken, will have less than 50% of the votes cast. Whoever wins, we’ll all have to accept a minority Senator for the next six years.

    Instant-runoff voting (IRV) offers a solution to this problem. If we had had IRV, Barkley’s votes would have been transfered to the voters’ second choices rather than thrown away. IRV wouldn’t necessary prevent a close election, but it would insure that the winner got 50% of the votes plus one vote. And it would do so immediately, not requiring an extra election, as was necessary in Georgia.

  4. Submitted by Ross Williams on 12/12/2008 - 10:45 pm.

    Instant-runoff voting (IRV) offers a solution to this problem.

    IRV offers no solution to the problem of a close election. In fact, it would make a recount that more complicated.

    Moreover, it is not unlikely that even with IRV the winner in this close of an election may not receive votes on more than 50% of the ballots cast. I suspect many Barkley voters, disgusted with both Coleman and Franken, wouldn’t have made any second choice. Thus both candidates would still have fallen short of 50% of the ballots cast.

    IRV has some benefits – stick to promoting those rather than portraying it as “solving” every real or imagined problem in our political process.

  5. Submitted by Peder DeFor on 12/13/2008 - 08:49 am.

    Gad, I hadn’t even thought of the mess that the recount could have become with IRV! And Eric Paul Jacobsen, I doubt that there is a large pool of Barkley voters that will have trouble accepting that he lost.

  6. Submitted by John E Iacono on 12/13/2008 - 01:31 pm.

    I have grave concerns about the allowance of the “missing ballots” in Minneapolis — of all places.

    It seems to me it gives the green light to just running a number of ballots through the machine a few extra times to sway the voting results.

    And if any place would be likely to try that it would be a Minneapolis precinct, in my opinion.

    I am hoping there are facts about this situation of which I am unaware, like how many voters actually signed in on election day vs how many votes (excluding absentees) were cast. And how we would know that that number is the same number that were signed in on election day.

    Unless more light is shed on this situation, I for one will never accept the results of the recount unless the margin is at least double the number of those “counted, but missing” ballots.

    As an election judge I know that ballot machines can be manipulated — the whole purpose of the paper ballots is that it is much harder to manipulate them.

  7. Submitted by John E Iacono on 12/13/2008 - 01:35 pm.

    Regarding absentee ballots rejected for lack of conformity to the rules:

    I am in full agreement that uniform standards must be set here, or “post facto” concerns will surely slant the process.

    As I have previously remarked, I am NOT if favor of “every vote” being counted — only every “properly submitted vote,” if the rules in place are to mean anything.

    I am in mind, however, of irony of the Florida situation, where it was later found that if the dems had got what they wanted THEY would have lost, and if the repubs had got what they wanted THEY would have lost.

  8. Submitted by Frank Bowden on 12/13/2008 - 04:17 pm.

    “Magnuson noted …(that) any voter whose vote had been disqualified could take the matter to court and a judge could order the county to reconsider.”
    OK. I voted absentee.
    1) How can I verify that my vote was counted? (Would I have been notified if it wasn’t?)
    2) If I learn that my vote was not counted, how do I “take the matter to court?”
    3) Does Magnuson really want the onus to be on each absentee voter to verify if his or her vote was counted and to sue if it was not?

    These are not rhetorical questions. (Well, maybe the third one is.) I really want to feel confident that my vote was counted, and I will want to take some action if it was not.
    Thanks for any help!

  9. Submitted by Eric Black on 12/13/2008 - 10:42 pm.

    Humble ink-stained wretch appreciates all the excellent comments. John Iacono, I can answer one of your questions based on the presentation that the Mpls election official, Cindy Reichert, made at the Canvassing Board. The machine count on election night showed 2,028 votes and 2,030 voters who signed in. That gap of two would increase to a gap of 135 if the “missing” ballots were not counted.

    Frank Bowden, I regret that I don’t know the answer to your question about how to find out whether your vote counted. I suggest you either inquire of your county officials or, if you prefer, contact the campaign of the Senate candidate for whom you voted. I predict they’ll help you and, if necessary, help you seek a legal remedy if your vote was improperly discarded.

    On IRV, although I find the idea intriguing and hope Mpls goes ahead with the experiment, I agree with Ross Williams as a matter of math. In the current instance, it’s quite likely that IRV would have produced a clearer winner in the Senate race, but under other circumstances could just as easily take a clear result on the first round and turn it into a virtual tie after the second-choice votes were distributed.

  10. Submitted by John E Iacono on 12/14/2008 - 02:15 pm.

    Eric,

    Thanks much for additional info about the 130+ ballots.

    Knowing that the number of persons who signed in exceeded the number of ballots available does ease my concerns a good deal…although I would follow up with questions about how the rosters were safeguarded after the election. Signatures are harder, but not impossible, to forge. They are, however, able to be verified if need be.

  11. Submitted by John E Iacono on 12/14/2008 - 02:17 pm.

    Frank Bowden,

    If your absentee ballot was rejected, it would still be in the envelope which has your name on it, and I expect the persons holding them now would be able to advise you it was in the stack. A phone call or two would probably give you the answer.

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