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KSTP wants to see the rejected absentee ballots and I get all weird and philosophical

A lawyer for the Hubbard Broadcasting TV stations (the biggest of which is KSTP-Channel 5 of the Twin Cities) is seeking access, under the state freedom of information statutes, to all of the rejected absentee ballots from the 2008 Senate election and the outer envelopes. These ballots presumably contain flaws that caused them to go unopened and uncounted. MinnPost teammate David Brauer noted this atop today's edition of the Daily Glean.

The letter requesting the data specifies that the stations would not try to ascertain which voters voted for which candidates (that data would violate the privacy of the voters) although it would take some high-stepping to figure out how that privacy could be safeguarded if a news organization had the ballots and the envelopes. The request has been submitting to every county in the state.

A story about the request on KSTP-TV's website says: "we want to count the ballots and try to determine how different counties decide to reject absentee ballots."

With the MN Supreme Court ruling in the recount/contest case expected any day, the Hubbard project could offer only an after-the-fact analysis of variations in the treatment of absentee ballots across county lines. Those variations, which undoubtedly occurred, have been the heart of Norm Coleman's recent legal argument.

The request is reminiscent of a project undertaken by a consortium of news organizations after the messed-up Florida recount in 2000. The consortium counted the ballots by various standards and found that depending on which standard was used, either George W. Bush or Al Gore could have been determined to have won Florida, and therefore may have been the rightful winner of the 2000 presidential election. (I find that this fact is often misstated by Bush supporters, who claim that the media recount showed Bush to be the rightful winner.)

The Hubbard project tells us something we should already have guessed: That, like Florida 2000, Minnesota's '08 Senate election will have a media afterlife. Once the privacy rights of voters (in this case, voters whose votes weren't counted) have been protected, I have no problems with such a media inquiry.

All of the rejected Minnesota absentee ballots have been examined more than once and rejected for flaws on the outer envelopes that violated, according to election officials, some requirement of the absentee voter law.

If I could get a little philosophical about this, after so many months of recount/contest/appeal (which I am preparing to do anyway as the case draws to a close), one thing I have learned from this experience is that elections are not as perfect as we would like. A really, really close election is like one of those stress tests that the feds just performed on the banks, and it tells you where the weak spots are in your system.

If you have 3 million ballots, including 300,000 absentee ballots, considered at dozens of counties and thousands of precincts around the state, and you end up with a margin of one-hundredth of 1 percent of all votes cast, and then you bring in corps of high-priced lawyers whose job it is to go over every aspect of the system with electron microscopes looking for flaws that worked to the detriment of their client, they will find flaws. And they will create doubt about whether any particular version of the result is truly accurate down to such a tiny margin for error. That is their job, and they have done it.

Let's try to bear this in mind when it is some other state's turn to go under the microscopes. They may look from a distance like dolts who don't know how to count votes, but chances are they just had a really close election.

People of good will should want to know what flaws exist in their election system so they can improve it. That process is under way. The first effort at an omnibus election reform bill was vetoed by Gov. Pawlenty at the end of the recent session, but various of its provisions will be back and Minnesota will eventually improve its system for assessing absentee ballots. One of the biggest such improvements -- authorizing early voting instead of requiring absentee voting -- didn't even make it into the bill.

Major improvements can be made without legislation, simply by increasing the training of county absentee ballot boards on applying the standards uniformly across jurisdictions.

Whatever KSTP and its sister stations come up with from their project may help reinforce that need, although the need is already clear.

But this is the hard part to handle, and I don't guess it's a message welcome to fans of either Franken or Coleman: Once the flaws have been found and the doubts have been raised, it may be impossible to know with any level of complete certainty and confidence who got the most votes. 

Indulge me a stupid sports analogy: Suppose after a really close baseball game, the loser studied tape of every ball and strike call, looking at each pitch from several camera angles, trying to find some that went against them that could arguably have gone the other way. (That team would not, of course, be interested in any calls that went in their favor that could arguably have gone the other way.) Given the variations we have all seen between the way different umpires call balls and strikes, and even the way the same ump calls them on different pitches, it seems a certainty that the losing team can put together a case that if they had gotten certain calls that they reasonably could have gotten, they would have won the game.

That problem -- I'm back to a real election now -- does not arise with a normal margin of victory. But with a margin of 312 votes out of 3 million cast, it does. That is unsettling, but there you are. You could have a system that requires a do-over any time the election is very close, but that is not the system we have, and it seems kinda crazy.

Minnesota has one of the best election systems in the country (much, much better than Florida's in 2000). There has been no evidence of fraud in the Minnesota case nor partisan cheating in the counting. Thankfully, there have been no partisan riots attempting to intimidate the recounters. And the various rulings have been mostly unanimous across party lines -- all points of which we should be proud.

But a flaw in our system -- chiefly regarding the disparate treatment of absentee ballots -- has been highlighted.

The counties, the Canvassing Board and the Election Contest Court have done what they thought they could, within the state election statutes, to get the most accurate count they could, and it shows Al Franken with a 312-vote margin.

Norm Coleman has contested the result in every way available to him under Minnesota's system. I defend his right to have taken every one of those steps. I believe Team Franken would probably have done the same if the results had been reversed.

The result, to date, is the 312-vote margin for Franken. Coleman was entitled to at least one more step, and he took it, asking the Minnesota Supremes to consider whether the three-judge-panel applied state law correctly. That ruling will come any day now. Based on all the hints available, including the questions the justices asked at the oral arguments, neutral observers believe the Supremes will uphold TheThreeJudges.

Coleman has a legal option or two left that he could pursue, but they are prohibitive long shots and they probably would not delay the seating of Franken in the Senate. My best guess is that within a few days of the next ruling, Coleman will make a gracious concession statement, and that will end it.

(I should have written this the other day, when I talked about the possibility of delay at the Pawlenty level, or of a filibuster in the Senate. If Coleman concedes, all of those possibilities go away and the thing is truly over -- except for things like a KSTP review of how the election might have turned out if the ballots had been counted differently.)

Coleman will not have to say that he believes Franken actually received the most legal votes. Perhaps he will always harbor doubts about it. But he will have had every opportunity afforded to him by the Minnesota system to prove that in fact he won the election, and -- assuming the Supreme Court rejects his appeal -- he will have failed to do so. And that will be as close to certainty as we can probably get.

When Al Gore has occasionally been confronted by the criticism that he didn't fight hard enough in the post-Florida situation he has said (this is a paraphrase from memory): I took it all the way to the Supreme Court. What was left, an armed coup?

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Comments (17)

Eric, I disagree with you about an automatic do-over election. It seems to work well for other states. There is no doubt in GA who the justly elected Senator is. Here in MN we will simply have the best lawyred one. I find that a bit troubling.

This should not even be looked at until after a decision is made, a Senator is seated, and that senator has been in Washington for 90 days, or some other longish time period.

Peder: The senator will be the one that is sent, and that will be just. There is no half-just senator. Although I agree that we should have a different electoral process, especially for gov. since we can never get that right. Obviously.

Peder, Georgia had a run-off election because no candidate received a majority of the vote, i.e., over 50%. That's an entirely different matter than having a revote just because the count is close. If you have a law mandating a new election if the margin is less than one tenth of a percent, say, what is to prevent a candidate who lost by two tenths from going to court in an attempt to prove that the real margin was within the threshold?

I'm with Frank on do-overs, and I'll add that in addition to long court fights over whether the margin was close enough, we could just have a second close election.

Regarding the runoff, IRV has been endorsed by every party in the state except the Republicans, so if they think they were robbed by the lack of a runoff, they have only themselves to blame. They could have advocated for a separate runoff election like Georgia, but they didn't.

Two sidelights on 2000:

Gore is correct that he fought it in the supreme court and e didn't have more legal options, but let's not forget it was Bush, not Gore, who took the recount to the court.

The media consortium that counted Florida's votes found that using a standard like Minnesota's where they counted everything where the voter's intent was clear, Gore won. So Gore's big strategic error was in not going for a statewide recount using that standard instead of just recounting where the obvious problems had occurred. But even that shouldn't have mattered, because where the theft took place was in the false identification of tens of thousands of black voters as felons. Almost all of those would have been Gore votes. This theft is what brought us the last eight years.

Suppose Hubbard does what they want. It won't be like an actual election process .... but it will put a numerical conclusion out there that won't match the actual answer offered by the actual electoral process legally in place at the time of the election.

So ... using a process governed by Hubbard rather than election law we'll have a result announced about our US Senate election ... and it will wrongly be treated as credible, an alternate reality to our legally sanctioned election.

I think the efforts Hubbard and others put into this can only have the effect of undermining faith in electoral processes. So I hope they don't get the access they need.

It was a close election. It'll be over when our State Supreme Court rules. Time for people to get ready to accept the conclusion and MOVE ON

*sniff* *sniff* I smell Hubbard wanting to cook those ratings...

Howard, I wish you were right, but the national Republican party leadership wakes up in the middle of the night in a cold sweat thinking what happens when (and if) Franken gets a certificate signed by the Governor and takes his seat as the 60th Democratic senator.

They will do *anything* to stall if the MN Supremes rule in favor of Franken.

Peder, you got a hold of some bad info if you think do-overs or runoffs work well in other states--they don't & they are extremely unfair to candidates & voters.

As someone who worked in the first GA Senate run-off in 1992 I know this is true--consider the facts. On election night in 1992, the incumbent Democrat, Wyche Fowler, won 49.2 percent of the vote to 47.7 for Coverdell, the Repuiblican; so he missed the 50 percent mandate by about 35,000 votes out of over 2.33 million cast. On the run-off, held two days before Thanksgiving when many voters were traveling, Coverdell won with 50.7 percent--630,000 votes to 613,000 (Fowler received just 100,000 votes less on election night that voted in total during the runoff). As many editoral writers noted, more than half a million original votes were invalidated by a silly law that reversed a very clear result. After that, the legislature changed the threshold to 45 percent but a few years ago, a Republican govenor & legislature, confident no Democrat could win statewide, restored the 50 percent threshold & caused last year's multi-million waste of money--at least this time the right result from election night occurred.

As any political professional can tell you, any election decided by less than 3 percent of the vote means a few small factors--like rain, a bad headline or machine failure in a few urban precincts--can change the results. In short, there's no perfect solution except to obey the law & count the votes you got the best you can.

Ok, let me be more clear. I don't mean to say that a Senator Franken will be 'unjust', only that he won't be as clearly legitimate as if the election had been decided by an error free margin. I'm not sure exactly where that margin is (.5%?) but the idea isn't ridiculous. If there had been a statewide reelection on, say the second Tuesday of December it could have given us a clear result. There would have been intense scrutiny of the process and better info to make certain that ballots were counted correctly.
Yes, there could be a second close election but what is the history on that? The reelections that I've heard about have had much clearer results. And I'd be happier with the close scrutiny over those results than the first one with umpteen different candidates and amendments.

Peter L - thank you for the Georgia election experience info. I didn't realize what had happened in 92.

Noting what John O said about Republicans at the national level i'm reminded of an old folkwisdom ... we judge how fair a process is by whether or not we like the outcome.

The Cornyn's of the world (Republican of Texas) are so hyperpartisan they'd rather the country suffer than succeed if the opposition gets an ounce of credit as a result. Or so it seems all too often.

I believe Senator-elect Franken should serve with a healthy dose of humility, given most people voted for someone else.

But I disagree with Mr. DeFor. Once the Mn Supreme Court rules (assuming a few things) we went through a very close, but entirely legitimate election process. He is no less legitimately the Senator than someone who won by landslide.

Legitimacy is driven by the integrity of the process - and the process integrity stood up quite well under incredibly close scrutiny. No evidence of partisan bad faith by election officials was revealed. No systematic disenfranchisement took place for partisan purpose. No evidence at all of election official or election process fraud was produced.

So although the election was close, it was as fair and legitimate as possible, given that humans do make errors

The consortium found that of the four standards used in Florida, three, including the one that Gore wanted used, gave Bush the win.

One gave Gore a 3 vote win, which even the consortium admitted couldn't be used reliably.

That is the truth that Democrat mouthpieces have refused to acknowledge.

Here it is from the source:

http://www.usatoday.com/news/washington/2001-04-03-floridamain.htm#more

"This "clean punch" standard would only count fully removed chads as legal votes. The USA TODAY study shows that Gore would have won Florida by 3 votes if this standard were applied to undervotes."

"Because of the possibility of mistakes in the study, a three-vote margin is too small to conclude that Gore might have prevailed in an official count using this standard."

When the truth is your friend, there is no reason to hide it.

If Franken prevails, I am fully confident that his feckless, er, faithful Democrat supporters will use the same tragically flawed thought process that concluded a man, whose lack of decency disgusted even devoted leftists like Betty McCollum, was fit to represent our state in the Senate and dismiss the fact that any common sense recount will show he was seated in error.

Eric,

Two questions...

With respect to Gore, was there a possibility that Congress could have weighed in? I seem to recall that the House decides cases in which no majority of electoral votes exists...does that also imply some ability to accept or reject electoral votes?

Is the main point of an election really to measure public opinion in the same sense as an opinion poll? If so, it strikes me that for an election to be robustly legitimate, the margin of victory would need not only to exceed the uncertainties in the vote count, but it would also need to exceed the number of registered voters (citizens? residents?) who do not show up to vote. Even with MN turnouts, probably very few elections would pass that test.

It strikes me that having an honest, pre-determined process is the important aspect of an election. We have that, in spades. In that sense, any final outcome will be legitimate--perhaps even more so than usual.

Actually, it was not Al Gore who took it all the way to the Supremes, it was Bush. And if a Minnesota style statewide recount had been conducted, Gore would have won, no matter the standard, according to the consortium study.
http://en.wikipedia.org/wiki/Florida_election_recount

In fact there never was a statewide recount of any type. The GOP mantra that the votes had been "counted and recounted" was false because many counties did not even bother with the statutorily required machine recount.

The true story was that the theft of Florida began months before election day when Harris conducted her indiscriminate purge of voters from the election rolls. The Baker Ginsburg post election mugging of the process was but a continuation of an effort started long before by Harris.

Not all Republicans are as craven as the Bush gang was in 2000. Witness the Washington State recount between Rossi and Gregoire in 2004 when the Republican Secretary of State was vilified by his party for refusing to pull a Harris, or Governor Crist in Florida last year who extended early voting hours when the polling stations were overwhelmed with the crush of voters, to the consternation of his fellow Goopers.

Minnesota can at least have the satisfaction of knowing that its recount was thorough, transparent, and fair. Unlike Coleman, Franken's position has been consistent throughout the process. Two tripartisan panels have certified him as the winner after as thorough a process as this nation has ever seen. Al's margin has increased at every stage, which speaks volumes. I only hope that the MN Supremes have used the extra time they have taken to produce a unanimous opinion so closely tied to the factual findings of the Contest Court as to be appeal proof, combined with a clear directive to TPaw to sign an election certificate forthwith.

Um, David? Actually, no.

From your own link:

"The results of the study showed that had the limited county by county recounts requested by the Gore team been completed, Bush would still have been the winner of the election."

It's weak tactics to use a third party anaylisis of source documents (Wikipedia? Hehe!) when the actual source is available (the link I provided), but citing a third party that clearly refutes your assertion is just plain bizarre.

"Gore is correct that he fought it in the supreme court and e didn't have more legal options, but let's not forget it was Bush, not Gore, who took the recount to the court."

As Iranians are showing, that was not necessarily the end of it.

The reality is that in the 2000 election thousands of absentee votes from military bases were counted in clear violation of Florida law since they lacked postmarks and were received after election day. Gore could have demanded the law be followed since it was likely those votes in conservative parts of the state went for Bush.

Gore could have said - I got the most popular votes and George Bush should step aside for the good of the country. That would have put the Court on notice that he would challenge the validity of any decision that handed the election to Bush. He could have called on the electoral college to uphold the vote of the people.

If Gore was as committed to winning as Bush, he would have taken his case to the people. He would have claimed his majority and demanded that it be recognized as the will of the American people. I guarantee that is what would have happened if Gore had won the electoral college and Bush the majority of the popular voter.

By inspecting rejected secrecy envelopes and/or ballot applications, I am not sure what KSTP is really trying to accomplish (other than to perhaps improve their ratings).

With data from rejected ballots, KSTP might be able to develop some sort of analysis resulting from disparate treatment of ballots. But to what end, at least as it relates to determining the candidate receiving the most legal votes?

If disparate treatment of absentee ballots is deemed to be random throughout the state, then both candidates are equally affected and there is no net affect in determining the winner.

If disparate treatment of absentee ballots is considered to probably be biased in favor of one candidate over another, then there is no way to quantify which candidate might be affected the most and by how much.

Because trying to link only an absentee ballot voter bias to any specific voting center will be exceedingly difficult to accomplish. Even though a bias of over-all voter preference on Election Day is easily established, that bias is a result of a vote count that is probably about 90% Election Day votes and 10% absentee ballot votes.

There is no way of knowing exactly what the bias would be (if any) if only absentee ballots are considered. It is quite possible (maybe even probable) that a voting center that tended over-all to favor Coleman and other Republicans during Election Day voting did not favor them when considering only absentee ballot votes.

To-date, results from the Recount and the Contest suggest that over-all Election Day votes tend to favor Coleman and absentee ballots tend to favor Franken. But the data sample is too small to be conclusive.

In any event, there is no voting center data to determine whom absentee ballot voters preferred in each voting center. As such, voter bias cannot be established.

So given the above considerations, I am unable to fathom any meaningful benefit of analyzing rejected absentee ballots.