One of the closest elections in U.S. Senate history is hurtling towards a critical juncture in its ongoing recount this week, as the campaign of Democratic challenger Al Franken opens a new legal front in its battle to break a virtual tie with Republican Sen. Norm Coleman.
On Wednesday, the Minnesota State Canvassing Board will hear arguments from Franken’s camp for why previously rejected absentee ballots should now be counted.
Coleman ended the initial count with an advantage of just 215 votes out of nearly 3 million cast, and has held a slim lead thus far in the recount.
“We’re 70 percent through [the recount] now,” Coleman Communications Director Mark Drake told Politico Sunday, “and a lot of the ballots that are looked at are in areas where Franken’s done well. We’re surprised he didn’t do better in terms of picking up more votes.”
Robert Hentges, a veteran Minnesota election law attorney not involved in this year’s recount, cautions that results rarely change in recounts of optical scan ballots, as are used in almost every county in the state, “Very few votes change,” he said, and “more often or not, for the winner on election night, the gap grows.”
While the conventional wisdom is that these recounted ballots should break the same way as the broader election results, Republicans fret that sloppy Democratic voters might mean Franken votes emerging as the recount continues.
“Democrats are [thought to be] more creative, free-spirited, so the idea is they’re more likely to make a mistake that the optical scan won’t pick up,” explains Hentges. “But when they recount the hard copy, those votes will be counted for Franken. If you talk to Republicans, they say it will be Franken’s advantage, because Democrats are stupid and will screw up ballots more often.”
Still, observers both in and out of the campaigns expect the drama won't come to a head just yet, and perhaps not until Christmas.
“This thing could just drag on,” says Brian Rice, a Minnesota attorney who has represented Democrats in state recount contests.
Gumming up the process is the mounting of nearly 2,000 ballot challenges from both sides as of Sunday.
“Unless somebody wanted to go in independently and start sorting them out, it’s going to be pretty murky,” says Rice. “There are still half a dozen counties who will be recounting until after Thanksgiving. Everything can happen. We could not have a senator for a while.”
A Nov. 15 study of the Senate race by three Dartmouth University professors, predicted that the recount would favor Franken. But as of Saturday night, Coleman still led by 180 votes.
“Overall, we feel good about where we are, good about way recount is being conducted,” Drake said, adding that most of the counties that have yet been reviewed favored Coleman in the election.
Franken supporters can take refuge in an analysis of available returns conducted over the weekend by FiveThirtyEight.com's Nate Silver, who determined that the Democrat would end up 27 votes ahead when the recount concludes on Dec. 16.
Republicans are moderately confident that the canvassing board will reject the Franken line on absentees, based on the assessment encapsulated in a letter Minnesota Assistant Attorney General Ken Rashke wrote to Democratic Secretary of State Mark Ritchie. In it, he cited Minnesota statute 204C.35, which states: “Only the ballots cast in the election and the summary statements certified by the election judges may be considered in the recount process.”
In an opposing brief, Franken lawyers said that Raschke’s analysis “contains significant errors.”
“In fact,” the Franken team argued, “both state law and key decisions from other states require that improperly rejected absentee ballots be included in the recount in this election.”
The Franken lawyers contended that Minnesota statutes require each county canvass report to include “the complete voting activity within that county.” In their arguments, they cited four examples of Minnesotans whose absentee ballots they claim had been improperly rejected. In addition, the attorneys evoked the Equal Protection recount requirements meted out in Bush v. Gore, as well as recount rulings from the state of Washington’s supreme court, to bolster their case.
Sarah Janecek, a former GOP lobbyist who now publishes the Politics in Minnesota blog, says there were “palpable snickers” in the hearing room last week when the Franken campaign stated its case.
And Rice questions the logic of wrangling over absentee voters before knowing what the final tallies of the automatic recount are.
“I’m a little bit befuddled by that,” says Rice. “It’s like in any litigation: don’t ask a question to which you don’t know the answer.”
Rice, using a blackjack analogy, says Franken’s move is “like he was playing for 21” when he’s “sitting at 20.”
“They are obviously raising the issue and it’s getting consideration and awareness, but whether that is going to bear fruit for Franken is a huge question.”
But the Franken legal team has already pulled rabbits out of hats. Last week, in a decision that Janecek called “stunning,” Ramsey County Judge Dale Lindman agreed to allow Franken to view all the information on voters whose absentee ballots had been rejected.
And in last week’s canvassing board hearing, it was Associate Justice Barry Anderson, an appointee of Republican Gov. Tim Pawlenty, who decided that the panel needed to take the time to mull the Franken camp’s protestations.
Presuming that he doesn’t catch up, Franken could hypothetically take a recount fight all the way to the floor US Senate, which according to the Constitution can involve itself in election certification. Some Republicans think Franken’s legal machinations now are more about creating political momentum for a long-winded pursuit.
“For right now, that is really putting the cart before the horse,” says Franken campaign spokeswoman Colleen Murray. “Right now, we’re still just trying to make sure where the ballots are counted. It really is too early to speculate.”
For a state abounding with civic pride, stupid is not something that anyone wants to look as the recount battle continues.
“This is part of the Minnesota pride in our elections process,” says Janecek. “It is a collegial process, because everybody agrees that we don’t want to be the laughing stock of the nation.”