I was probably too flip yesterday in suggesting that deciding which of the 19 disputed absentee ballot categories should be counted as valid votes would make a fun game to play at home (although my wife seemed to enjoy it for the first few rounds, and she’s a lot less recount-obsessed than some ink-stained wretches I know).
But the ultimate ruling on the 19 categories will probably have a big impact on both how long the election contest takes and possibly on who wins in the end. The briefs came in late yesterday, the lawyers will argue the question this afternoon, and there’s no way to predict when the ThreeJudges will rule.
As he has before, election law scholar Edward Foley of Ohio State University, has written a “community voices” piece for MinnPost analyzing the briefs. For those wanting a less lawyerly version, here are some of the main insights I gained from the Foley analysis (the analysis points are his, the attitude is mine):
1. Both sides’ briefs are self-serving. In their press briefings and press releases, each sides claims to be the side that stands for the principle that all valid votes should be counted. But it’s best to assume that in their arguments to the court, each side’s key principle is whatever might help its client win the Senate seat. In an adversarial system, this is as it should be. It’s for the judges to locate the principles and apply them without fear or favor. Writes Foley:
“Ultimately, it does not matter if the candidates’ positions on these issues appear arbitrary. We don’t expect the candidates to be principled (a regrettable state of affairs, perhaps, but reality nonetheless). Yet we do expect the judges to be principled, and it will be even trickier for them to do this balancing, since they don’t have obvious self-interest to ‘guide’ their answers.
2. Of the 19 questions that the judges asked (each question representing one category of possibly-wrongly-rejected absentee ballots), the two sides managed to disagree on 15. In all but one instance, the disagreement amounted to Coleman saying the category should be counted, Franken saying it shouldn’t.
(The fact that there was one category where they traded sides makes me wonder whether these teams now have such perfect knowledge of who voted for whom, that they know which category each side would “win” if it was counted.)
3. There are, in almost all the instances, plausible arguments that can be made in favor of counting or not counting. And it’s the most natural thing in the world that the side that is behind at the moment takes the more “liberal” view of allowing more votes in and vice versa. In this case, partisan ideology is nothing; partisan advantage is everything. Writes Foley:
“Ohio last year had a case raising essentially identical issues, in which the Democrats were making the same arguments that Coleman now makes, and the Republicans were arguing just as Franken is now.”
4. Until now, the ThreeJudges have been unanimous in all their rulings. It would be best if they can stay unanimous. It would be worst, for public confidence in the case, if the judges start splitting along predictable lines. Adds Foley:
“It will be even more disconcerting if a 2-1 split in the court for the most part tracks the positions of the two candidates on these categories; in that situation, it would start to appear that the court has ‘two Coleman judges and one Franken judge,’ or vice versa.”
There’s no way, at present, to speculate intelligently on when the judges will decide on the 19 categories. It does seem that the more categories they allow in, the longer the contest will last, and the fewer the shorter.