The decision to exclude several categories of ballots in the Minnesota Senate election contest by the three-judge panel introduces a serious risk of having the entire result invalidated. The Coleman campaign unsuccessfully lobbied the contest judges to reconsider their ruling today, which means that some ballots will remain rejected even though they met the same criteria as some accepted during the recount phase:
Shortly after being dealt an unfavorable ruling in the U.S. Senate election trial, lawyers for Norm Coleman today abandoned claims involving scores of absentee ballots rejected during the recount, and accused the three-judge panel hearing the case of creating “a legal quagmire” and a “fatal inconsistency.”
The rising tensions came after the judges this morning denied Coleman’s request to reconsider their Friday decision excluding a dozen categories of rejected absentee ballots. That limited the number of votes Coleman, a Republican, might be able to get counted as he tries to overtake Democrat Al Franken’s 225-vote lead. The panel denial without comment came in a one-page ruling.
Within hours of the ruling, Coleman attorney Joe Friedberg withdrew more than 60 rejected ballots that the campaign previously wanted reviewed for possible inclusion. Some lacked witness addresses, others lacked signatures or had other problems that the judges had said disqualified ballots.
At issue are the circumstances surrounding the acceptance of the 933 absentee ballots during the recount process, which only required that both campaigns approve them from the so-called “fifth pile”. Some of those accepted by stipulation met the same conditions as ballots now invalidated by the panel’s decision last Friday. For instance, no one checked in the recount process whether county officials verified that absentee-ballot witnesses were in fact registered to vote in Minnesota. During the testimony, it became clear that some counties never bother to check at all on that requirement, while others routinely reject ballots for not meeting that criterion. One of the categories now invalid are ballots that don’t have verified registered voters as witnesses, even though some ballots already accepted — and now part of the count — didn’t meet that requirement, either.
This problem didn’t start with the election contest panel, though. It began when the Canvassing Board that preceded it failed to conduct their own review of the absentee ballots and handed off the power of acceptance and rejection to the campaigns. That allowed for the introduction of invalid ballots into the count and bypassed the normal safeguards of at least nominally nonpartisan enforcement of state law.
It’s debatable whether the contest panel made the right decision on Friday, but in reality, either way they decided would still wind up with potentially “fatal” errors poisoning the process. Had they ruled for Coleman, they would have knowingly counted legally-invalid ballots. By denying the request, though, they have set up a pretty clear case for violation of the Equal Protection clause by treating some voters differently than others despite having equal compliance (or non-compliance) with the statutes.
The Coleman campaign feels comfortable with the 3500 or so ballots left to count, and since 933 ballots reversed a 225-point Coleman lead, 3500 ballots could have a similar effect in reverse. But the big problem now is the credibility of the results. The recount allowed invalid ballots into the count, which both sides can use for appeals. Even more so, it gives Harry Reid and the Democrats an excuse to reject Coleman should he eventually prevail and seat Franken instead.
In the end, it might be better to have the election contest panel follow the advice from the St. Paul Pioneer Press and hold a runoff election instead. We’ve essentially gotten a tie, with a recount that corrupted the count in a way that cannot be fixed. Either that, or the panel should certify the results from Election Night and declare the recount hopelessly botched.