Campaign Diaries

In the first decisive ruling in three weeks of proceedings, the Minnesota court has delivered Norm Coleman has received a major blow that significantly limits the Republican’s prospects of catching up to Al Franken.

As has been the case for months, the latest dispute concerns rejected absentee ballots, thousands of which Coleman wants thrown in the universe of valid votes. After ruling in early February that Coleman was allowed to challenge 4,700 of these ballots, the court outlined 19 categories of rejected absentee ballots and asked the campaigns to argue whether each category of ballot should be counted or rejected.

This sounds complicated, but the stakes were simple.

1. On the one side, Franken needed to convince the court that as few ballots as possible are valid for there to be no risk of the Democrat losing his lead. Accordingly, his lawyers argued that the standards outlined by law had to be applied as literally as possible, with very little leeway.
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2. On the other side, Coleman needed to convince the court that most of these ballots are valid for there to be a big enough pool for him to catch up. Accordingly, his lawyers argued yesterday for very liberal standards to determine which absentee ballots were valid. In particular, Coleman’s camp made the case that, under the Equal Protection clause, even ballots that are clearly in violation of election statues should be counted if other ballots with the same problem have been mistakenly counted elsewhere in the state. In other words: If it can be shown that a county mistakenly did not throw out the absentee ballot of a voter who was not registered to vote, it would be unfair to throw out the votes of other non-registered voters.

Today, the court ruled that ballots in 12 of the 19 categories should not be counted. (No ruling came on the remaining categories.) The meaning of this is clear: The court has dramatically reduced the number of rejected absentee ballots that might still be counted, and that is a major setback for Coleman.

If you dig in the ruling, the news only gets worse for the Republican. For one, the categories the judges have already ruled to exclude were not necessarily the most technical, nor the most unlikely to be included. In particular, the court decided that ballots whose problem is due to an election official’s error should not be counted. Republicans had good hope that ballots in such categories would be ruled valid. Another blow to Coleman is the court’s ruling that late arriving oversees ballots should not be counted; the GOP was hoping that Coleman would gain votes from military ballots.

Worse still, the court’s ruling went far further than reject 12 categories. It undermined the very grounding of Coleman’s election contest by directly rebutting the Republican’s key arguments:

1. The judges rejected Coleman’s contention that the absentee voting process was shown to be so flawed that the court had to accept a radical remedy. “The facts presented thus far do not show a wholesale disenfranchisement of absentee voters in the 2008 general election,” a judge wrote.
2. Very importantly, the judges all but dismissed Equal Protection-related arguments by writing that a ballot that obviously violates the statutes cannot be includes just because a ballot that was declared valid also violates the statues. “It is not for this court to ignore the unambiguous requirements imposed upon voters attempting to cast an absentee ballot in Minnesota,” the judges wrote. Had the judges sided with Republicans on this issue, it would have had the most dramatic implications.
3. More generally, the judges’ ruling clearly indicates that they will not consider liberal standards for declaring when a ballot has been legally cast, and that the election statutes cannot be dismissed when its intentions are perfectly clear.

Now, we await the judges’ decision on the remaining  categories, some of which could be significant. For instance, the court has yet to decided what should be done if the the absentee ballot application and the ballot itself have different signatures. Yet, other of the remaining categories are very technical, and it is doubtful that a large number of ballots fall in them (for instance, the court has yet to decide what to do if the witness has failed to provide his street address)..

That the judges have yet to make those decisions suggest Coleman can hope that these votes will be included. “We may discover certain additional ballots that were legally cast under relevant law,” the judges wrote. Yet, the judges’ overall refusal to entertain Coleman’s wide-ranging arguments has to be very worrisome to the GOP.

Even if the judges allow Coleman to argue for the inclusion of some of the remaining categories of absentee ballots, it is clear that they will want the Republican to show how the ballot does not violate election statutes - and that is a far higher burden of proof than the one Coleman’s camp was hoping to be asked to meet.