On Christmas Eve, the Minnesota Supreme Court handed down a decision that ensures the Franken-Coleman recount will not be resolved for at least a few more weeks.
Norm Coleman, who trails Franken by 46 votes, had filed a petition with the state supreme court to seek redress for the alleged double-counting of about 130 ballots, which occurred mostly in heavily Democratic Minneapolis. When damaged or defective ballots could not be run through the machine counters on election night, officials created duplicate ballots, marking the respective ballots "ORIGINAL" and "DUPLICATE", and ran the duplicates through the machines. In some precincts, where more votes were counted during the hand recount than were counted on election night, ballots marked "ORIGINAL" could not be matched up with an equal number of ballots marked "DUPLICATE" or vice versa. It stands to reason that officials created duplicates without properly marking them, and, therefore, both the originals and duplicates were counted during the hand recount.
But the supreme court unanimously ruled that a resolution to Coleman's petition is "better suited to an evidentiary hearing and fact-finding" and thus denied his petition. The "evidentiary hearing" where this issue will be resolved is an election contest, which, as Scott Johnson points out, is a "judicial proceeding that occurs before a panel of three judges assigned by the Chief Justice of the Minnesota Supreme Court."
Another issue that could come into play during an election contest is the canvassing board's decision to accept the election night machine count for a precinct where 133 ballots apparently went missing. As precedent for not counting ballots that no longer exist, the Coleman campaign pointed to a 2002 ruling in which a judge overruled the canvassing board's decision to accept the election night tally for 17 ballots that had been burned. The Coleman campaign has not said whether they would challenge the inclusion of these missing ballots in an election contest, but their argument is fairly straightforward. In a hand recount, ballots are tossed out for a variety of reasons--if a voter places identifying marks on a ballot, for instance, or crosses out a candidate's name. Accepting the machine recount for some ballots and a hand recount for others is a double standard.
If the 133 ballots are not included, Franken would lose 46 votes and the race would be tied. And Coleman could take the lead if duplicate/original issue breaks in his favor. However, both of these issues could be moot if Franken picks up enough votes among the more than 1,000 wrongly rejected absentee ballots that will be counted between now and January 5. We don't yet know if these ballots are disproportionately from districts that voted for Franken, but the inclusion of these votes is expected to benefit the comedian because of the strong Democratic push for early/absentee voting. There's still a chance that these ballots could help Coleman. But if Franken picks up more than 100 votes among these absentee ballots, Coleman probably won't have a shot at victory in an election contest.
