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.
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.
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.
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.