Minnesota court opens door to Coleman comeback

Nine days into the start of Minnesota’s election contest, the three judge panel issued its first major ruling. Asked to settle the heated issue of the improperly rejected absentee ballots, the court handed both camps a partial victory - a development that keeps the situation just as confusing as it has been for the past three months!

As you will remember, Norm Coleman was left trailing Al Franken by 225 votes at the beginning of January. At first, Coleman raised three major issues that he hoped would carry him to victory: (1) that an envelope of 133 ballots that has gone missing in Minneapolis should not be included in the final court; (2) that as many as 150 ballots from Democratic areas had been double-counted; (3) and that 654 absentee ballots from Republican areas had been improperly rejected.

These were the issues outlined in the election contest Norm Coleman filed in court in early January; his lawsuit did not ask for the inclusion of any rejected absentee ballots other than those 654. However, Franken’s 225 vote lead was so substantial that it made Coleman’s initial plan fatally flawed: even a favorable ruling on all of these issues would not have been enough for Coleman to close the gap!

What Coleman needed, Republicans soon realized, was to expand the universe of valid votes.

The solution to this problem could only be absentee ballots. County officials across the state had rejected a total of 11,000, so why only insist that 654 of those should be tallied? Coleman soon found himself insisting that all 11,000 rejected absentee ballots should be reconsidered and he advocated for the state to choose a very liberal standard in determining whether an absentee ballot is valid.

The Franken camp unsurprisingly protested, and the three judge panel was asked to settle the issue over what the Coleman camp was allowed to ask for during the trial: Can he only bring up the 654 ballots that were mentioned in the lawsuit he filed in early January? Or is he allowed to plead for the inclusion of all 12,000 rejected absentee ballots - even those that the GOP suddenly realized existed weeks after filing its lawsuit?

In an inconclusive move that is characteristic of everything that has happened in the Minnesota recount, the court ruled today to allow Coleman to challenge somewhere around 4,800 ballots - far less than what Coleman wanted (11,000) and far more than what Franken wanted (654). (The court arrived at such a middle-point by allowing the consideration of those absentee ballots about which the Franken camp had been briefed by the Coleman camp by January 22nd.)

All of this sounds complicated, but what it means is fairly simple.

The court’s ruling does not say that any of these currently uncounted 4,800 ballots will end up being tallied, but it makes it possible that they will. In other words, Republicans have succeeded in dramatically expanding the number of absentee ballots whose rejection will be reconsidered; they have expanded the universe of contestable votes to a number that is big enough to cast doubt on Al Franken’s victory - and this is something Coleman desperately needed to accomplish.

The ruling comes with major caveats that I discuss below, but it also gives Coleman a fighting chance and keeps the possibility of a comeback alive. Had the court thrown out all rejected absentee ballots but the initial 654, there would not have been enough ballots for Coleman to close the gap - and it would have become virtually impossible for the Republican to win this election contest.

Now, on to the caveats that were important enough for this day to be a partial victory for Franken as well.

Caveat #1

The court did throw out the more than half of the 11,000 rejected absentee ballots Coleman wanted to see include - and this is a major development. Those numbers might sound huge compared to Franken’s 225 vote gap, but no more than a small portion of these ballots will be counted; after all, county officials have gone over those absentee ballots two or three time and have verified at least once that all were properly rejected. For Coleman to gain 225 votes will thus not be easy, and it remains to be seen whether an expansion by 4,800 ballots will be enough.

Caveat #2

The court did not rule that these 4,800 rejected absentee ballots should be counted; only that the Coleman camp is allowed to argue that they should be counted.

The court specifically dismissed Coleman’s contention that the need for a uniform standard (based on Bush v. Gore) would require thousands of rejected ballots to be quickly included - as long as the vote was not deemed fraudulent and theĀ  voter had made efforts to comply with state law. Had Coleman convinced the judges on that count, it would have led to the automatic count of thousands of previously untallied ballots - and that would have been more than enough to endanger Franken’s 225 vote lead.

Instead, the court is throwing the burden of proof on Coleman by asking them to introduce evidence that these ballots were improperly rejected. (In other words, the ruling should not be taken as a sign that the judges are preparing to open the floodgates to thousands of new ballots - quite the contrary: the fact that those ballots were rejected repeatedly by county officials does suggest that it will not be easy for the Coleman camp to prove they should be accepted.)

Thus, Coleman’s lawyers will now have to prove that ballots were improperly rejected on a one-by-one basis - a review that is sure to take agonizingly long.

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