Campaign Diaries

Last week, Norm Coleman filed his election contest challenging Al Franken’s victory. Over the past two days, it has been the Democrat’s turn to go on the offense and file lawsuits of his own.

Coleman’s contest

On the one hand, Coleman’s camp is pressing its argument over missing ballots, over the potentially double-counted votes and over the 654 absentee ballots it says were improperly rejected.

Coleman’s biggest problem is that there is no one issue that could allow him to close the 225-vote gap. Quite the contrary, he could fall short even if he convinces judges to rule in his favor in two or three of these issues. Thus, Coleman is forced to assemble as large as possible a collection of complaints in order to have any chance of picking up enough votes if things really go his way.

This is exactly the kitchen sink technique employed in Coleman’s lawsuit. The Star Tribune reports Coleman’s lawyers have been raising questions about thousands of ballots that were previously undisputed; election officials in counties that agreed to go through the absentee ballots whose rejection Coleman was objecting to found no reason to reconsider their initial ruling; and, perhaps most importantly, most of Coleman’s complaints are not supported by any evidence, nor can they be.

In fact, even the Coleman’s camp is acknowledging that it dos not expect to win most of these challenges; the Star Tribune notes that the GOP only hopes to get “some” of these ballots counted. This is very significant, since Coleman would need a big margin of victory among these ballots even if all 654 were tallied.

More generally, it looks like Republican lawyers themselves know that many of their complaints are baseless and only intended to build a bigger case hoping that overshooting pays dividends.

Fighting off complacency

In these strange circumstances, Franken’s principal enemy could be complacency.

There is no reason that the issues currently being raised by Coleman should favor the Republican - that is, no reason other than the fact that it is Coleman’s lawyers who are choosing which ballots to include in the lawsuit.

What I mean is that Coleman’s list of potentially double-counted ballots whose exclusion would help him could be opposed to a list of potentially double-counted ballots whose exclusion would help Franken. Similarly, Coleman’s list of absentee ballots that have been improperly rejected (a list that mostly originates from red precincts) could be opposed to a list prepared by Franken that mostly originates from blue precincts.

In other words, for Coleman to win a court ruling that says counties should reconsider rejected absentee ballots could also open the door to Franken getting new absentee ballots to be counted. For Coleman to win a court ruling that says duplicate ballots without an original should be tossed out could open the door to Franken finding lists of such ballots as well.

For all we know, such rulings could end up costing more votes to Coleman than to Franken! All Democrats need is to be prepared.

Today, Franken’s campaign showed it is ready to play this game. In a court filing that seeks to dismiss Coleman’s lawsuit, Franken’s lawyers include a list of red precincts with similar problems of potentially double-counted ballots as the blue precincts that are being targeted by Coleman’s lawsuits. Similarly, the Franken campaign said today that it had prepared a list of 800 rejected ballots that it would ask to be reconsidered if Coleman gets his wish to get 654 ballots counted!

Armed with these lists, Democrats are sure not be taken by surprise if courts rule that any ballot that might have been doubly-counted should be excluded or that rejected absentee ballots should be reconsidered.

The best defense is offense

In parallel, Franken is using other means to actively oppose Coleman’s election challenge.

First, the Democrat wrote a letter to Governor Tim Pawlenty and Secretary of State Mark Ritchie, asking them to sign an election certificate. Even though state law prohibits such a certificate from being delivered as long as an election contest is not completed, Franken’s lawyers claimed that loopholes allow Pawlenty and Ritchie to do so. Yet, both men refused to honor Franken’s request. (Ritchie, a Democrat, even declared that he would not sign the form even if Pawlenty, a Republican, did so.)

This prompted the former comedian to file a lawsuit asking the state Supreme Court to force Pawlenty and Ritchie to sign the certificate. Franken’s teams is fairly complex: It claims that the law that is taken as a prohibition to the issuance of a certificate actually contradicts itself because of its “discussion of revoking an already-issued certificate if the contest concludes with the original loser now on top.”

Second, Franken’s camp is claiming that courts have no jurisdiction to judge an election contest because such disputes should be resolved by the Senate itself. This is an interesting argument, but one that seems like the weakest of Franken’s efforts - if only because other Senate races have been settled through lengthy court battles.

Third, as TPM describes, Franken’s new suit also seeks to discredit Coleman’s election contest by portraying as a desperate man’s effort to manufacture false controversies. In particular, it mocks the lack of evidence offered by Coleman’s filing; “Franken objects to Coleman’s failure to adequately set forward the grounds on which his contest will be made so that Franken can meaningfully respond,” the suit reads. Elsewhere, Franken’s lawyers write call Coleman’s lawsuit an “an imprecise and scattershot pleading.”