Norm Coleman got some badly-needed good news from the election contest. The three-judge panel ruled that almost 4800 previously rejected absentee ballots should get counted, opening up a large enough number that could conceivably lift Coleman over Al Franken in vote totals:
Nearly 4,800 rejected absentee ballots may be considered in the Senate recount trial, according to a ruling from the three-judge panel hearing the dispute between Republican Norm Coleman and Democrat Al Franken.
The court order indicates that all absentee ballots that complied with state law should be counted, along with those where errors occurred through no fault of the voter.
But the order limits Coleman to presenting evidence on those ballots specifically disclosed to the Franken legal team by January 22.
If I read this correctly, it provides a double benefit to Coleman by restricting the scope of the allocation to those ballots Coleman specifically flagged. The Coleman team had presented arguments initially on uncounted, rejected absentee ballots from counties most favorable to the Republican, and later enlarged to encompass a “count them all” strategy. The panel’s decision to restrict the restoration to their original scope means that the state will count the most favorable of the rejected ballots.
That presents other problems on the likely appeal if Coleman overtakes Franken. Like the initial recount, it appears to treat some ballots differently than others based not on statute but the whims of the political campaigns. That would put the election on a collision course with Bush v Gore and the Equal Protection Clause of the Constitution in federal court. It makes the result less likely to stand, and perhaps makes a run-off election an option if the federal courts determine that all of the errors have permanently poisoned the original vote.
Of course, an appeal assumes that Coleman can overtake Franken. With 4,800 new ballots in a three way race, assuming Dean Barkley got 15%, Coleman would need to split the remaining ballots 53.3% to 46.7% for Franken. That becomes less if the election contest agrees with Coleman on the double-counted ballots issue, perhaps down to 52/48, both doable in the more Republican counties, but not assured. As we have seen, the absentee ballots are, in the words of Forrest Gump, like a box of chocolates; you never know what you’re going to get until it’s too late.
Still, this makes Coleman more likely to gain some votes, and if he can win on the double-counting issue, he may be in range to retake the lead.