The Blog

Board Unanimously Rejects Franken Petition to Include Rejected Absentee Ballots in Recount

1:29 PM, Nov 26, 2008 • By JOHN MCCORMACK
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

CNN reports:

Minnesota's Canvassing Board voted unanimously to reject Franken's request to include thousands of absentee ballots that are not included in the recount in the Minnesota senate race between the Democratic challenger and Republican incumbent Norm Coleman.

The Canvassing Board, which oversees the recount, stressed during a hearing today, that they weren't rejecting the merits made by Franken's attorneys. The panel also indicated that the fight over the exclusion of the absentee ballots from the recount will most likely land in court.

Here's where things stand in the Coleman-Franken recount. With 82 percent of the ballots recounted, Coleman leads Franken by 243 votes, but--and this is a very important but--both campaigns agree that Coleman's lead is smaller than that.

The Coleman campaign has challenged 1,897 ballots, while Team Franken has challenged 1,806. Almost all of Coleman's challenges will go to Franken or neither candidate; almost all of Franken's challenges will go to Coleman or neither candidate. But both campaigns agree that Coleman has challenged a larger number of ballots that will end up going to Franken in the end than vice versa.

After 79 percent of the votes had been recounted, the Coleman camp claimed their candidate's lead was about 180 votes, but the Franken camp said Coleman's lead was only 84 votes. This number, Team Franken said, reflected the "election judge's actual calls from the table" at each recount site. It is highly unlikely that a significant number of election judges' rulings will be overturned by the canvassing board.

If the Franken campaign has resorted to telling the truth, and Coleman's lead is actually 84 votes, Coleman would still be on track to win when the entire recount process has finished. If Coleman's lead dropped from 215 to 84 votes, that translates into a 61 percent decrease in Coleman's lead after 79 percent of the votes had been recounted.

To catch Coleman, Franken would have to pick up votes at twice the rate he has thus far among the share of ballots yet to be recounted. Even though a large chunk of Minneapolis haven't been recounted, it seems unlikely Franken will pick up the votes he needs because all of the ballots from the Democratic strongholds of St. Paul and St. Louis County (where Duluth and the Iron Range are located) have already been recounted.

But the Franken campaign will almost certainly go to court in an attempt to include rejected absentee ballots. The issue could be decisive. John Fund sketches out the arguments of both campaigns in today's Wall Street Journal

The problem with adding absentee ballots is state law. According to an advisory opinion issued last week by the office of Democratic state Attorney General Lori Swanson, "Only the ballots cast in the election and the summary statements certified by the election judges may be considered in the recount process." A recount manual prepared this year by the office of Secretary of State Mark Ritchie, also a Democrat, makes clear that the canvassing board only supervises "an administrative recount" that is "not to determine if absentee ballots were properly accepted."

But Mr. Franken's attorneys are now arguing that Minnesota law also requires that each county's election report include "the complete voting activity within that county." They are also invoking the Equal Protection arguments cited by the Supreme Court in Bush vs. Gore, as well as rulings from Washington State's disputed 2004 governor's race -- that contest was decided for Democrat Christine Gregoire by 133 votes after an initial count and two subsequent recounts.