The tiring Coleman-Franken recount — with miles to go before election officials sleep — is about law, politics, public relations, ego, power and, of course, numbers.
Today, we can add a numerically driven term of art to the Minnesota political lexicon: “The Fifth Pile.”
It’s not an image conducive to digesting your Thanksgiving meal, but there it is, plopped on the Recount Table like a gob of mashed potatoes.
The fifth pile …
The phrase — which describes a new category and a new counting pile for rejected absentee ballots — emerged from today’s Canvassing Board hearing that, bottom line, can only be interpreted as a key legal and political victory for Sen. Norm Coleman’s side.
What also was crystal clear today, and what all of us have to look forward to in the next month, is that this critical election for control of the U.S. Senate will wind up in a courthouse near you sometime soon.
In an hour-long, politely argumentative hearing, the board — consisting of two Minnesota Supreme Court justices, two Ramsey County judges and Secretary of State Mark Ritchie — decided what Coleman’s lawyer, Fritz Knaak, has long argued: Absentee ballots that have been rejected should not be included in any recount.
Those absentee ballots are the stuff for a later legal contest over the election, a contest that everyone who knows anything agreed will occur, probably before Santa Claus comes to town.
Nothing off the table
As Franken lawyer Marc Elias put it today when asked if he might contest the election even as the recount continues: “What the Coleman campaign has been saying and today, indeed, what several members of the Canvassing Board told me is that the only way we might get these votes properly counted is through a contest … I’m not prepared at this point to take anything off the table at all … Right now the recount proceeds on pace. I don’t envision that changing, but we’re going to take this one step at a time and see what the Canvassing Board does next week.”
(The board will decide whether to count that “fifth pile” of improperly rejected votes next week.)
Elias added a more explosive comment that triggered a response from the Coleman camp.
Speaking of making sure all votes are counted, he said, “There are a number of ways this can happen, whether it is at the county level, before the State Canvassing Board, before the courts of Minnesota, or before the United States Senate, we do not know, but we remain confident that one way or another all lawful votes will be counted in this election.”
Then came some national pressure.
U.S. Senate Majority Leader Harry Reid weighed in with a statement, saying, “Today’s decision by the Minnesota Canvassing Board not to count certain absentee ballots is cause for great concern. As the process moves forward, Minnesota authorities must ensure that no voter is disenfranchised.”
To which Coleman campaign manager Cullen Sheehan said: “We call upon Al Franken to personally disavow his attorney’s comments, and to commit to Minnesotans that he will not allow this election to be overturned by the leadership of the Democratic Senate. Al Franken owes it to the people of this state to reject any and all efforts to stop a Minnesota senator from being sworn in on Jan. 6 if Norm Coleman continues to be shown to have won this election after the recount.”
What could happen?
It’s possible, though unlikely, that some legal action on the absentee ballots or any other issue could be taken even before the recount is concluded in all 87 counties by Dec. 5.
Or perhaps before Dec. 16, the date on which the Canvassing Board is set to examine legally challenged ballots and, after a few days of holding them up to the light and interpreting wayward markings, certify the election. Ritchie predicted that could take three days.
State law says a candidate has seven days after the board finalizes the count to contest the election.
With a faint twinkle in his eye, Ritchie said after the hearing, “I think all of us on the State Canvassing Board are really hopeful that we do such a good job people don’t feel compelled to go to court, but going to court is a right that everybody has.”
Including individual aggrieved voters, who may come out of the woodwork if their candidate doesn’t win the recount. There could be lawsuits galore.
If it extends into January and courts don’t rule or appeals aren’t completed, it could be decided by the U.S. Senate, again, unlikely, but possible.
Despite all the legal razzmatazz and trash talk, both sides again stated today that each believes it will win the recount.
Knaak said he is “comfortable” with where Coleman stands, about 200 votes ahead.
Elias said: “We are still on pace irrespective of these ballots to win the recount straight out.” Without specifics, he said, under the Franken campaign’s analysis, the gap is closer than the 84 votes he claimed Tuesday.
But the lawyers have legal contingency plans up the wazoo, just in case.
The board, its members agreed, is a “ministerial” body and can’t make determinations on the validity of rejected absentee ballots. Thus, the decision today to side with Coleman.
But the board threw Franken a bone.
As Ramsey County District Court Judge Kathleen Gearin stated, “A larger number than ever before voted by absentee ballot … It’s not right (if) improperly rejected absentee ballots are not counted … It would be absurd to argue against that.”
Later, Supreme Court Chief Justice Eric Magnuson said: “We want to make sure that every vote is counted, and we will not stand in the way of having a determination of whether a vote was legally cast … It simply is not our function.”
You can bet those words will appear in any briefs filed by the Franken campaign before a state or federal court, if and when the issue of counting rejected absentee ballots gets there.
“I am confident that whether it is through judicial process [or] through a contest process these ballots will be counted,” Elias said of absentee ballots that are ruled improperly rejected. “It is not going to be a tolerable state of affairs for Minnesotans to know that though they cast lawful votes, they didn’t get counted.”
Why the rejection
Let’s review …
There are four legal reasons for an election judge to reject an absentee ballot: a voter’s signature doesn’t match up with her registration card; the return address on the mailed ballot doesn’t match up with his address on the ballot; the ballot was sent to the wrong precinct; or the person already voted in person.
In theory, these are the first four piles. The ballots are placed in these piles. And those envelopes are not opened.
But there is a fifth category of vote that has been rejected so far in this election.
That fifth category — to be placed on this so-called “fifth pile” — are absentee ballots that were rejected for none of the other four legal reasons but, simply, were turned away because of administrative errors, as in an election official screwed up.
Knaak said in many counties such uncategorized rejections were being counted, although media reports have claimed in other counties that’s not the case.
“Uncounted absentee ballots that were mistakenly rejected should be opened and counted,” said Canvassing Board member and Ramsey County District Judge Edward Cleary.
But whether and how the Canvassing Board should allow those votes to be part of the recount is now in the hands of the Minnesota attorney general’s office.
During the meeting — which was conducted in a State Office Building hearing room in front of a small smattering of spectators — the board asked the AG’s office for an opinion on this.
That’s expected soon. The Franken campaign will surely react if the AG says the fifth pile can’t be included.
Hennepin County Attorney Mike Freeman has said his office and that of other county attorneys could get involved in reviewing absentee ballots, but that wasn’t decided today, although the board seemed open to such assistance.
So far, according to reports, most counties haven’t literally put rejected ballots on piles, but have marked their status on spreadsheets or other lists.
Knaak claimed after the hearing that it’s “a handful” of votes that might wind up on the fifth pile. But Elias wouldn’t allow that the amount is so tiny, and Ritchie said he didn’t know the exact number; he did say 12,000 absentee ballots have been rejected out of the 288,000 cast.
The other pressing issue today and on the horizon is the rise in challenges of recounted votes and how they will be handled by the Canvassing Board.
Late Tuesday night and then in an early morning news conference, the Coleman camp called for a truce on more challenges … although through Tuesday night, the Coleman side had actually challenged more votes than the Franken side. But in Sherburne County alone Tuesday, 801 votes were challenged … far more than any other county.
Knaak proposed a meeting of both campaigns to withdraw some challenges that each side had made.
For days now, Elias has said the Franken campaign was planning on reviewing its own challenges and unilaterally withdrawing some frivolous challenges it had made.
But this afternoon Elias wasn’t amused by Knaak’s news release of Tuesday night that was also faxed to the Franken offices.
“It has become apparent that both campaigns are engaged in a mounting game of ballot challenging,” Knaak wrote. “This is not the way the recount process was intended to work … With that in mind, in the spirit of the Holidays, and to give respect to this process that it deserves, we ask you to join us … in standing down in the game of ballot challenge one-upmanship.”
Countered an angry Elias: “Let me be clear, we are not playing games. If the Coleman campaign thinks it’s engaged in a game, then I suggest it revisit what it is doing. We are attempting to ensure that every Minnesotan that lawfully cast a ballot has that vote counted and that voter intent wins out. That’s not a game.”
So much for the holiday spirit.
The recount continues Monday. The Canvassing Board should have a decision on the fifth pile next week. The physical recount should be over by next Friday.
The rest is history to be made.
Jay Weiner can be reached at jweiner [at] minnpost [dot] com.