To my shock and your dismay, I feel obliged to return once more to the topic of Bell v. Gannaway (also known as The Case of Mabel’s Messed-up ballot) to straighten up a possible half-truth in my previous post on the matter.
If you’re up to speed on the Minn. Supreme Court’s 1974 ruling, you know that as part of their reasoning in that case (one leg of a three-legged stool, I called it), the Supremes indicated that a candidate or his representatives may challenge a flawed absentee ballot before it was placed in the ballot box on Election Day, but if that chance was missed, the ballot couldn’t be challenged in a post-election court contest.
This case has seriously interfered with Team Coleman’s argument that the ThreeJudges should do something (not clear exactly what, but voiding the election has been suggested) about the number of improper absentee ballots that slipped through on Election Day and are now tainting the count. Judge Kurt Marben asked the lawyers straight out in court why the precedent of Bell shouldn’t be taken as settling the issue, and not in a good way for Coleman.
Team Coleman had made several arguments that Bell is out-of-date or inapplicable to a statewide Senate race. The best of these arguments is that under current laws and rules, representatives of the candidates have no opportunity to challenge absentee ballot envelopes before the ballots are removed and deposited in the counting machines.
Two days ago, based on a conversation with Ramsey County Election guru Joe Mansky, I wrote that representatives of the candidates’ parties (not the Coleman Campaign, in this case, but the Republican Party on his behalf) have a theoretical but not a practical opportunity to challenge absentee ballot envelopes at the precincts on Election Day. Based on further research, I believe that was half-wrong. Anoka County Elections Chief Rachel Smith and Hennepin County Chief Cindy Reichert pored over the laws and regulations at my request (Reichert also did this on the witness stand yesterday, but I missed it) and they concluded that the party representatives who are in the precincts on Election Day have the right to challenge the eligibility of voters who are present at the polling place, but have no opportunity — theoretical, practical or otherwise — to challenge absentee ballots before they are counted.
Mansky disagrees. He believes that if the challenge is based on the eligibility of the voter, a party representative theoretically could raise a challenge. Eligibility means a challenge that the voter in the absentee ballot isn’t qualified to vote based on age, residence or citizenship. (That’s different than the case in Bell where an absentee ballot envelope wasn’t signed.) If Mansky is right, leg one of the stool still exists, but barely. But if Reichert and Smith are correct, leg one is gone and Bell-Gannaway is a Catch-22: you’re not allowed to challenge an absentee envelope after the election, and you have no opportunity to challenge it before.
The other two legs of the Bell v. Gannaway stool are still standing, so far as I can figure. (1. the state statute seems to say that challenges have to occur before the ballot box; 2. if you could challenge the envelope after the vote was counted, you couldn’t match it to its ballot, so how would you rectify the error?) But it does appear that if a candidate can’t challenge a flawed absentee ballot during an election contest, they never can challenge it. The logic of Bell stool leg 3 (you had your chance to catch this improper ballot, and you missed it) seems to be inoperative.
Legal analyst Sarah Cherry of Ohio State University’s election law website, who is apparently as obsessed with the Bell case as is your humble ink-stained wretch, looked at these facts and concluded:
“Following past precedent is a core feature of the American justice system, but that, of course, does not mean that laws and the interpretations of laws do not change over time. While outright overruling of past decisions is rare, it is not so rare for a court to distinguish one set of facts from another in the distant past so that a new legal conclusion must be reached. In this case, it would not be impossible for the contest court to reason that Bell does not require in every case that invalid ballots remain in the count just because they were not challenged before they were commingled. If the practice has changed with respect to what challengers are permitted to do at the polls, for example, it would be possible for the contest court to arrive at a different conclusion about what should be done with invalid ballots. This contest court may well agree with the dissenters in Bell that limiting the time frame for permissible challenges to election night in every case could result in violations far more serious than forgetting to sign a ballot envelope controlling the outcome of an election. The court could, therefore, decide that the Bell rule is not to be universally applied to elections large and small, complex and simple.”
The Franken and Coleman teams make their closing arguments today. I suspect they will continue to argue about the applicability of the Bell precedent. Then they will fall silent, while the judges judge. May God bless this honorable court.