Some Voters More Equal Than Others UPDATED

(UPDATE AT THE BOTTOM OF THE FULL POST) If you're a big-enough political news junkie to have been following this column, then you surely know the broad outlines of the situation in the Minnesota Senate race. What you may not know is just how preposterous the Coleman campaign's position has gotten over the past few days, culminating with today--December 23rd.

First, permit me to level the playing field with a brief review. Unlike Florida, Minnesota has a very explicit recount procedure with very explicit guidelines for the process of determining the intent of a voter. With paper ballots featuring those horrid bubble-in circles invented in the 1950s, the state is left in a close election with a pile of questionable ballots that could mean the difference in the outcome--ballots that weren't read by the machines but only because the clear intent of the voter was subverted by the lack of flexibility in the technology's ability to intuit that voter's wishes. A bubble which was checked instead of filled-in, for example, represents a clear preference for one candidate over another, but won't be read by the machines as a vote for that candidate. Therefore, when the race is close enough, the state of Minnesota carries out a hand recount of all ballots to determine if the counting of such ballots are sufficient to change the outcome.

It should be said in fairness that there is an obvious beef with such a practice--namely, that individuals who fail to complete their ballot in a manner that is sufficiently proper to be counted by the machine, have failed to follow the directions and should not have their votes counted. The problem with making such an argument is that the law of the state of Minnesota has already been crafted with the contrary opinion in mind: voters who clearly preferred one candidate over the other should not be disenfranchised because, for example, their bubble didn't stay inside the lines.

Since most of these ballots tend to favor Democrats, it would be the job of the Republican in any disputed recount to make this argument--and it's no small comment on the inherent fairness and validity of Minnesota law that the Coleman campaign has made no such effort. They've argued several other points of law, about which much more anon, but they have filed no brief, in any court, anywhere, claiming that the very idea of a hand-recount of improperly bubbled-in ballots is a violation of their constitutional right to equal protection (which was the argument by which the Bush campaign successfully halted the hand-recount of all the ballots in Florida in 2000).

The difference comes down, improbably, to a question of state's rights vs. equal protection--neither of which would seem to have anything to do with tabulating the results of an election. In Florida, when the State Supreme Court ordered that all the ballots be re-counted by hand, there was no existing law or even a set of accepted clerical procedures, for doing so, and as such the Bush campaign could argue that the hand re-count would be tantamount to re-writing the law of an election, after the fact, to change its outcome. Indeed it's worth noting that the Bush people freely and explicitly acknowledged that the hand-recount in Florida would have reversed their win, and in fact argued that it was for this reason that the US Supreme Court should stop the process before a positive margin for Vice President Gore became widely accepted among the general public.

In Minnesota, by contrast, the law for hand-recounting ballots--down to its specific clerical procedures--has existed ever since the early days of optical-scan ballots, and as such the US Supreme Court would have to impinge the right of the state of Minnesota to carry out its elections however it wants. This is, as the Coleman people must surely have known all along, a much steeper hill to climb, and in the end would almost certainly have resulted in a ruling against them, rather than for.

Failing this argument, the Coleman campaign has been left to the piecemeal business of trying to preserve the fragile lead they had at the beginning of the hand-recount through individual challenges of ballots as true representations of the intent of a voter to cast his or her vote for Mr. Franken. By initially challenging a large number of such ballots, the Coleman operation created the illusion that their lead was widening during the hand recount, but the Franken people quickly wised-up and retaliated, leading to a mini-tsunami of frivolous challenges, the bulk of which were subsequently and unilaterally withdrawn by each of the two campaigns before they could incur the disfavor of the State Canvassing Board. With the bulk of the remaining challenged ballots ruled upon by that Board yesterday, the 22nd, Mr. Franken had reversed the initial margin against him. Unofficial tallies from a variety of sources showed him with a 48-vote lead.

It's difficult to overstate the desperation of such a moment for the Coleman campaign. Knowing that the majority of the remaining un-counted ballots--most of them absentee ballots that were initially disallowed for clerical reasons not the fault of the voter--will favor Mr. Franken if counted, the Coleman people couldn't base their hopes on arguing to have those votes counted or disallowed, since a closure of the matter today would certify a 48-vote Franken victory. He couldn't make back his deficit from further counting in pro-Democratic constituencies, and he was at a deficit, at that moment. The only viable path left for Mr. Coleman was to find technicalities on which to strip some votes that have already been logged for Franken.

And here at last we come to the point of today's column: There are, it happens, a series of so-called "duplicate ballots" that the Coleman campaign will argue (hasn't yet, as these words are being written) were actually counted twice. If Coleman could prevail in this argument and have those votes taken down, it's plausible (though, interestingly, not automatic) that he could recover a very slim lead. As to whether or not that will happen, semantics play a big part in one's perception of Coleman's chances for success here.

The term "duplicate ballot" in this context is just about the least fortunate figure of speech in the history of colloquial conversations about matters of law. Under some circumstances in Minnesota a voter is allowed to cast their vote in a format that doesn't read in the machines--such as a ballot cast by e-mail. In these cases, the relevant county clerk generates a paper ballot that will read in the machines, and reads that ballot into the machines. Hence the term "duplicate ballot." The Coleman campaign will argue that over 100 of these ballots--all of them in profoundly Democratic-leaning Hennepin County--were actually counted twice--once in their original form, and a second time after the duplicate had been generated by the country clerk.

I won't leave you hanging in suspense any longer; the argument is pure rubbish on any number of grounds. To begin with, a county's only reason for generating a duplicate ballot is if the original ballot won't read in the machines. There's no way for both ballots to be counted, or else there wouldn't be two ballots in the first place. Second, the Hennepin County clerk has an excellent brief, laying out point-by-point the errors in the Coleman campaign's reasoning and indeed even reconciling their own tabulation against the specific claims being made in the Coleman brief, with no change in their count. Third, and certainly most ironically, it was the Franken campaign that initially planned to challenge duplicate ballots--and found themselves shouted-down by the Coleman campaign for their inability to recognize the folly of such a challenge.

At the end of the day, win or lose, the Coleman campaign has officially turned to forced disenfranchisement as its only remaining path to victory. My own personal guess is that the State Supreme Court will find no compelling arguments in the Coleman brief, and will rule in favor of the current tally. There are approximately 1,600 absentee ballots for which the two campaigns have been ordered by that same State Supreme Court to determine a mutually acceptable process of tabulation--and there is no apparent scenario by which the Coleman campaign can prevail when held to a reasonable standard of integrity by the other side like this. Either the two sides will fail to agree and none of the 1,600 ballots will be counted (in which case Franken is the winner), the two sides will fail to agree and all of the 1,600 ballots will be counted (in which case Franken is the winner), or the two sides will come to some improbable agreement about how to count the 1,600 ballots (which wouldn't happen unless it ensured that Franken will emerge the winner, since otherwise he wouldn't agree).

It's been a long road for Franken--to say nothing of those of you who've bothered to read this recap of the situation, here--but the long and the short of things at this hour seems to be that Al Franken is the next Senator from the great state of Minnesota.

UPDATE: The process by which the 1,600 un-counted absentee ballots will be reviewed has been publicized, and it does leave a glimmer of hope for Coleman. As ordered by the State Supreme Court, each of the 1,600 sealed envelopes containing uncounted absentee ballots must be reviewed by all three of, (1) a representative of the Coleman campaign, (2) a representative of the Franken campaign, and (3) a representative of the county that initially rejected the ballot. It is still the case where all three entities must agree a ballot is improperly rejected before it is opened. The county official, Franken and Coleman. If any one of the three disagrees they must fill out a form on WHY it was properly rejected. That reason is then sent to the voter and the voter then has recourse in the court system.

What this implies, presumably, is that Coleman could argue in writing why every apparent Democratic-leaning absentee ballot should not be opened, gambling that (a) many of those Democrats would not appeal their ballot rejections, and (b) the Franken campaign wouldn't retaliate by challenging every single Republican-leaning absentee ballot. These two things, added together, aren't as unlikely as they first sound: Coleman could easily fan a credulous media into believing that Franken's objections are pure-retaliatory, cowing his team into backing off--and the Democrats whose ballots are challenged will only have any initiative to fight their ballot rejections if Franken hasn't been bullied into conceding, before they even get their day in court. It's a longshot sequence of events, to be sure, but it's plausible enough to render my earlier confidence in the final outcome a bit premature.

Dave O'Gorman
("The Key Grip")
Gainesville, Florida