Minnesota Recount: Coleman takes a big hit

posted at 6:41 pm on March 31, 2009 by Ed Morrissey

The election contest panel has returned a preliminary ruling — and it doesn’t look good at all for Norm Coleman.  The panel ruled that it will accept 400 previously-rejected absentee ballots for consideration, far fewer than Coleman hoped.  He needs 225 more votes out of the 400 than Al Franken in order to catch up, and since a good portion of the selected ballots come from Franken-supporting areas, the decision will not likely move the needle:

In a potentially decisive ruling, a panel of three judges today ordered up to 400 new absentee ballots opened and counted, far fewer than Republican Norm Coleman had sought in his effort to overcome a lead held by DFLer Al Franken.

The ballots appear to include many that Franken had identified as wrongly rejected as well as ballots that Coleman wanted opened. About half come from Hennepin, Ramsey and St. Louis counties, places Franken won by significant margins.

Spokespersons for Coleman and Franken were not immediately available for comment.

The panel emphasized that some of the nearly 400 ballots might not be counted, but were included in the order because their eligibilty was unclear.

I just got off of a teleconference with Coleman legal spokesman Ben Ginsberg, and the mood is ugly.  Ginsberg thoroughly rejected the panel’s reasoning, and emphasized repeatedly that they have created a series of conflicting standards by which votes got counted in this election.  Instead of sticking with the broadest standard, applied erroneously during the recount (when disputed ballots should not have been opened at all), the court has now struck a strange new position that endorses what would now be illegally cast ballots in the final tally.

The contracting universe of ballots is now too small for any realistic hope of Coleman to erase Franken’s lead.  Ginsberg made clear that the Coleman campaign will appeal at least to the Minnesota Supreme Court, which will delay the certification for another few weeks.  Ginsberg refused to comment on whether the campaign would appeal to federal courts if that proves unsuccessful, but the feeling I got was that they’re ready for a long fight over the issues raised in this contest.

A couple of the reporters asked Ginsberg whether he felt the panel had criticized Coleman’s team for not providing enough evidentiary support for their claims, to which Ginsberg responded testily that he considered that a difference of opinion.  Ginsberg also called this an “April Fool’s Day” order, which will give readers an idea of the mood at Camp Coleman.  It does seem the court wanted to send a message, especially in this passage on page 8:

The election contest is a civil action and the burden is on the party seeking relief to introduce evidence to the Court sufficient to meet its burden of proof.  As in all civil trials, a party may not rely on presumptions to prove its case.  … The Court gave both parties every opportunity to meet its burden.  The Court did not impose time limits on the length of the election contest nor did it limit either party’s opportunity to call witnesses  or introduce evidence.

From my observations, that’s been the problem with the Coleman contest from the beginning.  Because the recount invalidly began opening absentee ballots and admitting invalid ballots, Coleman’s team essentially had to argue that similarly invalid ballots were now valid — but had to provide evidence for the ballots that fit into the same state law that makes them invalid.  How does Team Coleman get evidence to prove validity through invalidity?  It’s a complete contradiction, and the larger surprise may be that the court allowed as many as 400 ballots under that argument.

Ginsberg noted that the panel has yet to rule on some other issues, notably the 130+ ballots that Coleman claimed were double-counted, and the sudden appearance of some ballots in Franken precincts.  However, it seems very doubtful that Coleman can win the election contest even with all of these going his way without more ballots being included in the new count.  Their best hope is to make the Bush v Gore equal-protection argument at the state Supreme Court, or more likely, in federal court.  They may also argue that the opening of invalid absentee ballots in the recount phase (and the contest panel’s rejection of similar ballots) hopelessly tainted the recount process and ask that the state Supreme Court order the recount rejected entirely and that the state live with the results of Election Night.  That will be a long shot, but it may be worth trying.

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