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Franken-Coleman State Supreme Court Case Set for June 1

1:18 PM, Apr 24, 2009 • By JOHN MCCORMACK
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As they like to say in Minnesota, uff-da this sure has been a long recount, and it just got a little longer. Oral arguments for the supreme court appeal will begin on June 1, which is later than the Franken campaign requested. So there won't be a Senator Franken until this summer at the earliest. Shucks.

Franken currently leads Coleman by 312 votes. I doubt that Coleman will be able to make up the difference in his appeal, which rests mainly on the argument that there were different standards used to count absentee ballots, and, therefore on equal protection grounds the court needs to count roughly an additional 4,000 rejected ballots.

The first problem is that the supreme court is unlikely to rule in Coleman's favor. Aside from the substantive arguments against Coleman's appeal, Coleman isn't facing an unbiased court. Two Republican-appointed justices have recused themselves. In what appears to have been a masterful stroke of simple partisan genius, the Democratic secretary of state Mark Ritchie chose these two justices and two left-leaning lower court judges to count disputed ballots in December. The ballot-counting was mostly fair, but Ritchie certainly must have known that the Republican appointees would have to recuse themselves during any appeals thereafter.So, the case will be heard by the same five justices whose rulings are partly to blame for the use of different methods of counting rejected absentee ballots. In December, rather than waiting until the election contest to settle the dispute over counting these ballots, the supreme court ruled:

We order candidates Norm Coleman and Al Franken and their campaign representatives, the Secretary of State, and all county auditors and canvassing boards to establish and implement a process...for the purpose of identifying all absentee ballot envelopes that the local election officials and candidates agree were rejected in error

In different counties, different standards were applied. This was a blundering error for which these five justices bear some blame. A ballot is either a legal vote or an illegal vote. These aren't decisions over which political campaigns should have veto power--power that was effectively given to them by the Minnesota supreme court's ruling. Somehow, I doubt the court will now say: oops, we screwed up.

In the unlikely event that they rule in Coleman's favor, and thousands of more ballots are added, it's a long shot that Coleman will gain 313 votes. The last couple batches of absentee ballots added to the count have helped Franken, and the Coleman campaign hasn't provided detailed data to indicate that Coleman would have a good shot of gaining enough votes to win.

All that said, I think it's quite likely that more valid votes were cast for Coleman than Franken in this election. So far, the recount process has mainly been focused on adding improperly rejected absentee ballots to the count. If just a tiny percent of the more than 200,000 absentee ballots were improperly accepted Franken's lead could very easily be attributed entirely to his edge over Coleman among invalid votes.

The problem is that once those invalid ballots were opened and counted, you can't uncount them.