Minnesota started its election contest in the Al Franken-Norm Coleman Senate race today. No one expects any decisions on this for at least a few weeks, and in the meantime, we’re not going to get much new news other than spin efforts by both sides. Ben Ginsburg, Coleman’s campaign attorney, tries explaining the process and the effort behind the election contest:
REPORTER: The Minnesota Senate race. No, it is not over yet. Today a three-judge panel begins taking a look at the recount which left Democrat Al Franken ahead of Republican Norm Coleman by 225 votes out of nearly 3 million cast. The judges’ decision could be months away. It finally will determine the winner whenever it comes in. We have reaction now from both sides, starting with the Coleman campaign. On the phone from St. Paul, Minnesota, Coleman attorney Ben Ginsberg. Ben, we have seen the painstaking video of the Canvassing Board going over these ballots, basically vote by vote. How do you convince these judges that that all resulted in a mistake?
BEN GINSBERG: Well, not quite vote by vote, Jon. The Canvassing Board itself, and the Minnesota Supreme Court said that the Canvassing Board only had limited authority to go over votes. So many of, for example, the 12,000 rejected absentee votes were never before the Canvassing Board. On top of that, the Canvassing Board did allow in 933 absentee ballots. In doing that, there are ballots that look exactly the same amongst the rejected absentee ballots, that have not been allowed in. And so it is the contest stage under Minnesota law where you get to enfranchise all the people who should have their votes counted.
REPORTER: So you are saying that they sort of changed the rules to favor the democratic side?
GINSBERG: No, the Canvassing Board just under Minnesota Law has a very limited function. And so they didn’t look at all the votes and they didn’t enfranchise all of the people whose votes should be counted under standards under the Canvassing Board, in allowing some votes in. On top of that, if you look at this pile of 12,000 votes, some counties let in ballots, others counties didn’t get the ballots, yet the ballots look the same. We ask Al Franken to join with us in being sure that all Minnesota votes counted. And, we are very, very surprised that he opted not to do that. I guess because he is in a calculated litigation strategy or something. But Minnesota has a long, proud tradition of having every vote count. And, shockingly, Al Franken is not joining it.
REPORTER: Well if he is ahead, I mean, can you blame him?
GINSBERG: Well I mean, there are sort of crass calculations that could be made at any stage. But we are asking all 12,000 votes to be examined and a big chunk of those will come in. They ‘re not all going to be Norm Coleman votes, there are going to be Al Franken votes in there, but in order for people to have faith in the final results of this election, you have to count all of the votes. And we hope that Al Franken will eventually join us in that.
REPORTER: I don’t know if you can give me an honest answer here. But most observers are saying that, you know, with the Canvassing Board having, you know, certified that he comes out, that Franken comes out, 225 votes ahead, you’ve got a tall order to try to convince these three judges that Coleman may stand a chance to be the winner here.
GINSBERG: Oh, I think that people who say that don’t really understand what the process is; they say the Canvassing Board has a very limited jurisdiction and they just looked at the ballots that were in front of them which was not all the ballots. Under Minnesota law the contest phase is the first time a unified, one group of judges will take a look at all the votes to be sure that all the similar ballots are counted the same, which after all, Jon, is the touchstone of any fair election.
No one who’s followed this even superficially can dispute one thing: the election has turned into a mess, and the responsibility for that belongs to everyone and no one. If we had the option in our state law, the best solution would be to void the election and hold a run-off. Failing that, the election contest panel will have to find a way to correct a recount process that failed Bush v Gore and the Equal Protection Clause. How would they do that? Probably by authorizing the count of the 12,000 rejected absentee ballots and reversing the double-counting of ballots in some precincts. Either that, or they could rule the recount invalid and certify the Election Day results instead, but that’s a long shot indeed.