Someone is going to look pretty silly.
When all of this is over, and that final missing or rejected or absentee or smudged ballot is counted, someone is going to have some ‘splainin’ to do.
Will it be Al Franken recount lawyer Marc Elias, who said today that his candidate is now leading the recount by 22 votes?
Or will it be Norm Coleman recount attorney Fritz Knaak, who hasn’t provided such numerical specificity but, more or less, has generally agreed with the count on the secretary of state’s website.
That said, since the recount began two weeks ago, Coleman has maintained a fluctuating 200- to 300-vote lead.
Elias says the data on the secretary of state’s site “is not incorrect, although it is somewhat misleading.”
But it is the data that MinnPost has used to calculate its daily update, and what other news organizations in town have relied on for their count.
Using the secretary of state’s website, which breaks out from the total all of the challenged votes, Coleman had picked up 88 votes after Tuesday in the recount and extended his lead to 303 votes.
Challenges — which are made by Coleman and Franken volunteers at recount sites scattered around the state — are not factored into the official count.
But everyone knows there are a host of frivolous challenges in the nearly 6,000 raised by both sides, with the Coleman side challenging about 200 more votes than the Franken side.
Indeed, today Elias announced that Franken has withdrawn 633 challenges and, essentially, given them to Coleman.
Coleman’s side said it will wait until after the recount ends Friday and, then, most likely withdraw some of its challenges.
But, the question remains: Who will be right when the recount ends and then when the State Canvassing Board examines all the challenges, beginning Dec. 16?
Before we go there, let’s report the latest recount controversy: 133 ballots are missing in Minneapolis.
The Franken campaign late Wednesday demanded that Secretary of State Mark Ritchie conduct an investigation and even keep the recount open past Friday, if need be, to find the ballots. There is a belief, of course, that an overwhelming number of the ballots were Franken voters.
“This is an incredible breach of the democratic process,” said Franken spokesman Andy Barr, adding, “2,029 voters had their votes recorded on Election Day, and now local officials are able to produce only 1,896 ballots.”
The Associated Press is reporting that city officials are claiming the votes were counted twice, but the Franken campaign disagrees. More on this Thursday.
The Elias counting method
First, let’s examine exactly how Elias comes to his 22-vote margin, as of the end of counting Tuesday with about 140,000 votes to go.
The Franken side counts clear-cut votes the challenger received and clear-cut votes that Coleman received.
But it treats challenged ballots in a different way from the secretary of state’s website count.
According to Elias, when a vote is challenged at a precinct, the election official usually makes “a call at the table” on the challenge.
In most cases, Elias said, the election judge will state that, in his or her opinion, the vote should go to Franken or Coleman.
It is this decision at the table by a local election judge that Franken’s side is using to calculate its version of the current recount.
Elias showed a ballot today that his side challenged but that was clearly a Coleman vote.
“Since this was challenged, it looks like Norm Coleman lost a vote. It doesn’t go in the counted pile,” Elias said, even if the local judge ruled it to be a Coleman vote at the precinct.
And, in this case, Elias agreed that this local challenge was frivolous and the vote should go to Coleman. In the Franken internal count, the vote went to Coleman. On the secretary of state’s site, the vote went into the challenged ballot column.
Thus, Coleman didn’t get a recorded vote on the website.
Elias’s theory — and vote-counting presumption — is that virtually none of the challenged ballots will be upheld.
That is, in Elias’ view, in just about every case the local election judge’s ruling will prevail once the Canvassing Board begins its arduous task.
Recount challenges: the NFL instant-replay scenario
Elias said it’s not unlike the video challenge in pro football. In an NFL game, the ruling on the field stands unless there is indisputable evidence on video that the play should be overturned. Most times, the ruling on the field stands.
“We all know that sometimes instant replay overturns it,” he said. “But, as a baseline, the NFL could say we’ll assume every call on the field is correct or every call is incorrect. It’s more sensible to start with the proposition that they’re probably correct in the first instance.”
So, in fact, Elias is using different rules and different “calls at the table” than the secretary of state is. That’s where the different counts come in.
Coleman has challenged, to date, about 200 more votes than Franken’s side.
Elias also believes more of Franken’s challenges will be upheld than Coleman’s, but that is one man’s extremely biased opinion.
“But let’s just assume none of the challenges are upheld, none of ours and none of theirs, where does the vote stand?” asked Elias. “We’re up by 22 votes.”
Of course, Knaak disputes such a counting method.
“We’ve never been able to figure out how they do their calculating,” Knaak said today.
In fact, earlier today, minutes after Elias claimed the 22-vote margin, Knaak jokingly claimed that Coleman had a 2,200-vote margin.
“I have no evidence of this. There are no indications from any independent organization that we have a basis for making this statement and, in fact, I’m not even sure who came up with this 2,200-vote number,” Knaak said, “but I like the sound of it, so there it is.”
He called Elias’ numbers “empty rhetoric” and “fictitious.”
When asked about the process of “counting at the table” at local precincts, Knaak said, “Our volunteers haven’t seen any evidence of that kind of note-taking or that kind of information-gathering being done” by Franken observers.
“We have absolutely no reason to be deceiving ourselves about the outcome of this,” Knaak added, saying the Coleman campaign’s internal numbers look a bit better than the secretary of state’s tally.
Well, folks, someone is fooling themselves — and us.
Which means, when the last ballot is counted and the Canvassing Board stamps either Coleman’s or Franken’s election certificate, some lawyer will have some ‘splainin’ to do.
Jay Weiner can be reached at jweiner [at] minnpost [dot] com.