Coleman: Let’s do it over

posted at 2:20 pm on March 3, 2009 by Ed Morrissey
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Update: See this later post; I interviewed Coleman spokesman/attorney Ben Ginsberg, who says the Strib got it wrong.

Norm Coleman’s attorneys finished presenting their case to the election contest panel with a suggestion that Minnesota conduct a revote.  The recount effectively tainted the process so badly, attorney Jim Langdon told the three-judge panel, that it could not be rescued.  The Coleman campaign echoes what many have begun to consider, including the capital’s newspaper:

For more than a month, Norm Coleman stressed flaws in Minnesota’s election system.

And on Monday, Coleman lawyer Jim Langdon wrote the three-judge panel to suggest the problems are so serious they may not be able to declare a winner.

“Some courts have held that when the number of illegal votes exceeds the margin between the candidates — and it cannot be determined for which candidate those illegal votes were cast — the most appropriate remedy is to set aside the election,” Langdon wrote in a letter to the court.

Franken’s team argued the opposite — that Minnesota did a good job in managing the election and that the results from the recount are reliable.  However, as the Strib notes, that conflicts with the Franken position since Election Night:

But Franken lawyers will walk a tightrope with that strategy, because they also plan to call on voters to testify that their absentee ballots were wrongly rejected. While Coleman seeks to count 2,000 rejected ballots, the DFLer has a list of 804 rejected ballots he wants reconsidered. Elias said more than 100 voters could be called to testify, including more than a dozen today.

The decision by the contest panel to block ballots for having the same flaws as those accepted in the recount phase has essentially ruined the recount.  One sympathizes with the decision, as it hardly seems like a good remedy to count illegally cast absentee ballots to achieve consistency with a stupid decision by recount officials and the Secretary of State to give the campaigns control over what qualified as a valid ballot.  However, it set into motion two problems: the inconsistent treatment of Minnesota voters and the acceptance of explicitly-declared ineligible ballots in the recount totals.

In fact, the question of rejected absentee ballots didn’t belong to the recount system in the first place.  Mark Ritchie, the Secretary of State, should have rejected all attempts to do anything except recount the ballots accepted on Election Night.  The question of proper acceptance belonged to the contest phase, not the recount phase, where those questions of legality could be properly debated and decisions then consistently applied.  By essentially allowing the campaigns to pervert the recount and then usurp the state role in enforcing regulation, Ritchie hopelessly botched the recount process, making its results invalid, without hope of identifying the offending ballots as they have been mixed into the general population of accepted ballots.

The contest panel has two choices for a rational resolution.  The first would be to reject the recount and revert back to the Election Night results and then proceed with the absentee ballot challenges before it now.  That would also, though, create an inconsistent treatment for those voters who legitimately had their absentee ballots counted during the recount.  The other is a special election runoff between Al Franken and Norm Coleman, which would settle the matter on the most legitimate of ground: the will of the Minnesota electorate.

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