Sunday, February 22, 2009

The Senate Recount in Minnesota: Are We There Yet?


My good friend and blogging mentor, Charlie Leck, sent me an e-mail today. While it was likely a nudge to post something, I took the bait.

Charlie wrote:

I'm trying to follow these stories in Strib about the vote counting, but it gets pretty crazy sometimes... with Coleman people saying some unflattering things about our boy.

Will Franken really be our Senator?


Second question: When?

Chas

Here is my response. For much better political analysis, when you're done reading this, click here for Charlie's take on the idiot Minnesota's Sixth District re-elected to Congress, Michelle Bachman.

Dear Charlie:

Everyone looking at the situation that I've read about, listened to in the media or talked to directly, including Coleman supporters speaking off the record, believe that Franken's 225 vote lead at the end of the recount will hold up.

Assume that Coleman gets the panel to review 3500 rejected absentee ballots. Assume that 20%, or 700, of the ballots are ultimately counted, notwithstanding the fact that election judges from both parties have already reviewed them 2 or 3 times and deemed them non-compliant with Minnesota law (this is key as noted below). 700 would be an extraordinarily high number.

Of the 700 ballots being counted, figure 15% would go to Barkley or no vote. That leaves 595 votes cast for Coleman or Franken. In order for Coleman to erase Franken's 225 vote lead, 411 of the votes would have to be for Coleman and 184 for Franken, a 69-31% margin. That is highly doubtful, no matter where the votes are from. Moreover, Franken has votes he wants added back in on the same theory used by Coleman, ostensibly from sympathetic districts which would take the margin adjustment in the other direction. Finally, the other challenges Coleman has been asserting, regarding duplicates or counting missing ballots from the church in Dinkytown, probably won't prevail and there are not any other large sources of uncounted votes.

This leaves Coleman without sufficient votes to overtake Franken. And it's been apparent for some time, especially after this week's rulings generally viewed as setbacks for the Coleman campaign.

Here's what's really going on: In Bush v. Gore, the U.S. Supreme Court held that it was a violation of the U.S. Constitution's assurance of equal protection to have different standards used to determine the validity of ballots in different jurisdictions. As a result, they refused to allow the recount to continue in Florida since the extensive scrutiny of the contested ballots was different than everywhere else (n.b., this is from memory; I haven't reread the case).

Coleman is setting up for a similar argument to take up on appeal from the Minnesota election contest. He is already suggesting that the panel's refusal to allow all 12,000 rejected absentee ballots to be examined, or allow the 993 formerly rejected absentee ballots to be reviewed, is a violation of the same Equal Protection clause. Why? Because various county election officials have been testifying as to the varying ways they chose to determine which absentee ballots would be rejected and which allowed. Each of them felt they were acting fairly and just doing their job. However, there were variations in how the job was undertaken. Therefore, Coleman argues, the fact that there have been several reviews of the absentee ballots by local election officials is less relevant than the fact that there were no uniform guidelines applied when the reviews took place.

As I opined in my last Prairie Pondering blog, Coleman's game plan has less to do with winning than with delaying the seating of the 59th Democratic U.S. Senator. While he may believe that his Equal Protection challenge will provide a shred of hope that he'll return to the seat, the odds of that happening are diminimus, especially with the Democrats in control of the Senate and the perception that will follow that an election was stolen by Republicans (again) if it comes down to the legal argument of violation of Equal Protection.

I believe Franken will be seated. The "when" is harder to pin. It really depends on how far Coleman will take his appeals, how long it takes the appeals to be heard, and what the U.S. Senate does in the meantime. I don't see how Coleman says "never mind" at this point. The best hope for a "quick" resolution is an expedited decision by an appellate court (if Coleman pursues that route) that rejects Coleman's legal theory. Otherwise, I can see this dragging on into the summer.

Frankly, it's a disgrace and an incredible disservice to the best interests of Minnesotans.

1 comment:

Peter said...

Can't they just run a decathlon at this point? If that ends in a tie as well, I vote for a Hockey shootout. It'll be cheaper, faster, entertaining, and the TV advertising revenue would pay for the event itself.

The Doritos MN Overtime Senate Race can replace Monday Night Football's time slot until Baseball starts.

Wisconsin would be jealous.

-Peter