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Can Coleman Win?

5:49 PM, Jan 5, 2009 • By JOHN MCCORMACK
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Over the weekend, Al Franken's lead over Norm Coleman jumped to 225 votes after officials counted about 1,000 absentee ballots that had been wrongly rejected due to clerical errors. This afternoon, the Minnesota canvassing board certified that Franken is the winner. But, as the St. Paul Pioneer Press explained in an editorial last week--much to the chagrin of Senate Democrats like Harry Reid, Chuck Schumer, and Amy Klobuchar--this doesn't mean the race is over:

We see this as a three-act drama. If, by this time next week, Al or Norm is declared the winner of the recount - that is, at the end of Act II but before Act III - there will be a rush to put that man in the seat immediately. We could imagine a scenario where the Democratically controlled U.S. Senate would be happy to do this if Franken maintains his margin.

That would be a slap in the face to Minnesota fairness.

State law includes the right of an election contest. Seating either man while that is pending will be seen as a partisan power play that breaks faith with the spirit of the law. A court contest need not be drawn out but it is the candidate's right. Norm and Al can cool their heels until it's over.

In an election contest, a three judge panel appointed by the chief justice of the Minnesota supreme court will settle disputes between the Coleman and Franken campaigns. Even though it appears there have been serious problems with the recount that have boosted Franken's numbers, Coleman's odds of overtaking Franken's 225 vote lead in an election contest are quite long.

The most egregious problem is the alleged double-counting of ballots. The Coleman campaign claims that Franken netted about 100 votes in Minneapolis precincts where more votes were counted during the recount than on election night.Another issue is Minneapolis's decision to submit election night tally for 133 missing ballots, among which Franken netted 46 votes. The Coleman campaign has pointed to a 2002 decision that held ballots that do not physically exist must not be counted.

The Coleman camp also objects to the inclusion of 171 ballots, which netted Franken 36 votes and were discovered in a box of ballots during the recount. So far I can tell, the Coleman campaign has not cited any particular law or court case to justify the exclusion of these ballots from the final count.

The Coleman campaign says it will also contest the canvassing board's inconsistent standards for judging Franken and Coleman ballots, though I doubt this could net more than 20 votes for Coleman.

So if these issues are resolved in Coleman's favor--a big if--he'd still be down by at least 20 votes. One possible way Coleman could make up the difference is if additional absentee ballots are counted. The Minnesota Supreme Court ruled today that the resolution of this dispute is best suited for an election contest:

"The Coleman campaign contends that there are 654 ballots, in addition to those identified by local election officials, that should be examined, but the Franken campaign disagrees. The Franken campaign has itself identified additional ballots. We take no position on the merits of either campaign's contentions."

In at least a couple counties, election officials have acknowledged that some of the ballots identified by Coleman were improperly rejected. Yet, it's unclear how many of these 654 ballots were in fact wrongfully rejected, and, more importantly, how many votes Coleman might gain if they are counted.