Last week, when he arrived for his meeting at the State Canvassing Board, Minnesota Supreme Court Chief Justice Eric Magnuson carried two historic legal cases with him.
Give His Honor credit for dusting off the law books in his library.
One case – O’Ferrall vs. Colby – was decided in December 1858, barely seven months after Minnesota became a state. The other – Taylor vs. Taylor – hearkens to 1865, when another cool guy from Illinois was president.
Exactly what Magnuson has in mind with such antiquity remains to be seen, but it sure looks as if Wednesday’s decisive gathering of the Canvassing Board could be a real legal dance for the lawyers representing both incumbent U.S. Sen. Norm Coleman and challenger Al Franken.
What’s at stake then is whether the hundreds of so-far rejected absentee ballots will be included in the ongoing neck-and-neck recount and, ultimately, who represents Minnesota in the U.S. Senate.
To totally understand Taylor and O’Ferrall, you first need a crash course in early lawyerese, it seems, but even the untrained reader can know this: State election laws have changed drastically since the mid-19th century.
Absentee ballots still at issue
In their own more modern documents submitted to the Canvassing Board – of which Magnuson is one of five members – the Coleman camp seems to rely on an opinion of State Assistant Attorney General Kenneth E. Raschke. That opinion clearly states that rejected absentee ballots are verboten in this recount.
That’s one way the Canvassing Board can lean on this matter.
Fritz Knaak, the Coleman campaign lawyer, has repeatedly cited the Raschke opinion in arguing – as he did again Monday – that it would be “unprecedented” to allow the rejected absentee ballots into this current recount.
They are ballots for AFTER the recount, Knaak says, when an election is contested.
Raschke, in his opinion written to Secretary of State Mark Ritchie, said, “Only the ballots cast in the election and the summary statements certified by the election judges may be considered in the recount process.’’
It’s thankfully, and concisely, three pages. But even for the layman, it does not seem thoroughly argued.
In the 17-page Franken brief, submitted by former U.S. Attorney David Lillehaug and Washington, D.C.-based recount expert Marc Elias, the key point is that some absentee ballots were rejected in error.
Equal protections aside – that is, it ain’t fair for someone’s absentee vote to be rejected wrongly – there’s another matter; Franken’s legal team argues – and state law says so – that the recount should involve “votes validly cast.”
Of course, for now, those votes aren’t yet considered to be “validly cast.” That’s what the Coleman squad asserts.
Or are they?
Were they rejected by an election judge who was tired or biased or, with good intentions, wrong?
And if it’s the job of the Canvassing Board on Wednesday to certify a so-called “correct report,” how can the board do that without including all the votes that were cast?
What a devilishly detailed world we live in, eh? That’s why they are judges and, in this case, five of them.
But let’s go back to 1865 for a moment, and one of Justice Magnuson’s pet cases, cases by the way that he instructed the secretary of state’s staff to distribute to other members of the board. So, everyone will be well-versed on this.
In that 143-year-old Taylor case, in which voters decided on the county seat of Chisago County, the Supreme Court wrote then: “When a question or an election is put to the people and is made to depend on the vote of the majority, there can be no other test of the number entitled to vote but the ballot box. If in fact there may be some or many who do not attend and exercise the privilege of voting it must be presumed that they concur with the majority who do attend … Suppose the vote should be very close, one, two or a dozen majority one way or the other, how could the fact be ascertained but by the box of the exact number entitled to vote.”
Are not absentee voters “entitled to vote” in the 21st Century?
While Magnuson is a former legal partner of Gov. Tim Pawlenty, might his carrying of this case suggest he’s ready to back the DFLer Franken camp?
Logistical problems remain
Who also knows this: What if the Canvassing Board agrees with Franken’s side? How the heck are counties going to count the previously rejected absentee ballots? What’s the procedure for that?
Franken lawyer Marc Elias said he would leave that up to the Canvassing Board. But, clearly, he will be asked for a solution to this complex mechanical problem for democracy.
Will all the counties need to get more volunteers and the campaigns more judges in 87 counties? Or will all the contested absentee ballots be ruled on by Magnuson, Ritchie and the three other judges?
Or will the Canvassing Board’s decision – either way – be taken to a state or federal court?
That problem aside, what of all the currently challenged ballots that are at the center of this recount? Both sides predicted that as many as 3,000 challenged ballots could be in play once the recount is concluded next week.
Knaak suggested that, perhaps, both sides could get together and, in a lawyerly way, figure out which challenges aren’t frivolous. Elias said his side is analyzing its challenges and could be in a position to withdraw some of them. He seemed open to a meeting with the Coleman side once the recount is completed and before the Canvassing Board meets again on Dec. 16.
Late today, Deputy Secretary of State Jim Gelbmann told MinnPost that as part of Wednesday’s Canvassing Board meeting, there will be a discussion about how to reduce the challenges. Ritchie could direct his staff to talk with both campaigns to reduce the pile.
This came as both sides reiterated their views today that each is intensifying its challenges. Knaak called Franken’s strategy “deceptive deflation.” That is, he claimed that the Franken side is challenging ballots so as to reduce the actual recount number and make it closer than it really is for public relations purposes.
Elias denied that. Elias said, challenges aside, Franken, by his campaign’s count, is now within “double digits” of Coleman, somewhere between 10 and 99 votes.
But give Knaak points for coining the most poetic phrase of the process. “Deceptive deflation.” It has quite a ring to it but should not be confused with irrational exuberance, which is not yet on anyone’s lips or mind.
Here’s the challenged vote problem: If it takes three minutes per ballot for a thorough examination and there are 3,000 challenged ballots, that’s 9,000 minutes or 150 hours or more than six straight days of ballot counting . . . without sleep. Won’t work.
By the way, the State Canvassing Board has told both campaigns to prepare for a two-hour meeting Wednesday and that there will be no oral arguments from the lawyers; they should only be there to answer inquiries from the judges.
Could it be that some questions will be about dusty old cases?
Jay Weiner can be reached at jweiner [at] minnpost [dot] com.