Republican incumbent Norm Coleman headed into the Minnesota U.S. Senate recount leading Democratic challenger Al Franken by more than 200 votes. But on Jan. 5, the state Canvassing Board certified recount results showing Franken received 225 more votes than Coleman in the general election, out of nearly 2.9 million votes cast. How did this happen?
Unlike many right-leaning blogs and commentators, Coleman makes no claim of partisan funny business by the five members of the Canvassing Board, which has only one clearly identified Democrat. Coleman’s lawyer once praised the panel’s makeup, in fact.
Coleman’s appeal challenging the board’s certification, which a three-judge panel began hearing Jan. 26, lays out his theory: "Not every valid vote has been counted, and some have been counted twice." Coleman raises several issues, among them: duplicate ballots, "missing" ballots, "improperly" rejected absentee ballots and discrepancies in rulings made on ballots concerning voter intent.
The outcome of this squeaky-close race now rests with the courts. But even if Coleman wins on all points it’s far from certain that he would gain enough votes to change the outcome. When the Canvassing Board was forced to count some disputed absentee ballots, for example, it was Franken who won a majority of them. Now Coleman wants even more rejected absentee ballots opened and counted, but nobody can say if he would get a higher percentage of those, or if he would just see Franken’s margin increase.
In our Analysis section, we take a look at each issue.
After nearly 12 weeks of post-election wrangling, a three-judge panel began hearing Coleman’s challenge in a Minnesota court on Jan. 26. He’s contesting the Jan. 5 ruling by the state Canvassing Board, which unanimously certified recount results putting Franken ahead by 225 votes. The trial – technically called an "election contest" – could take weeks.
Coleman announced his intention to sue claiming: "Not every valid vote has been counted, and some have been counted twice." His petition claims that 654 absentee ballots from mostly Republican areas were wrongly rejected, that up to 150 votes in predominantly Democratic areas were counted twice, and that Franken benefited from the handling of 133 "missing" ballots in Minneapolis.
The burden is on Coleman to prove all these claims, and even if he wins on each point it’s not clear whether he would gain enough votes to change the outcome. In each case, Franken would probably gain some more votes, too.
150 Votes Counted Twice?
The Coleman campaign claims that in some precincts ballots were counted twice, while the Franken campaign says there’s no definitive proof that double-counting occurred. The Canvassing Board and the state Supreme Court both have said they lacked the jurisdiction to determine whether or not this happened. One Canvassing Board member and the city elections director for Minneapolis acknowledged double-counting may have occurred.
What’s this about? According to Minnesota state law, if a ballot is damaged or defective and cannot be read by an electronic tabulating machine on Election Day, election officials are to make a duplicate copy of the ballot and feed that into the machine instead. They are to label it as a "duplicate," and preserve the original ballot in a separate envelope.
Prior to the recount, both campaigns agreed to count originals instead of duplicates. But lawyers for the Coleman campaign claim that about 150 duplicate ballots were counted in addition to their originals. They say some precincts recorded a greater number of votes during the recount than there were during the original count on Election Night. Second, according to the campaign, some originals could not be matched with their corresponding duplicate during the recount.
The Canvassing Board rejected the Coleman campaign’s challenge of "double-counted" ballots, telling the campaign that it lacked the jurisdiction to make a decision. Coleman went to court over this issue and lost the first round. The state’s highest court rejected the petition. A written decision from Associate Justice Alan C. Page said that the issue would need to be decided at a trial, where evidence could be presented:
Justice Page, Dec. 24, 2008: Because the resolution of petitioner’s claim that double-counting of votes will result from including unmatched original damaged ballots in the recount is better suited to an evidentiary hearing and fact-finding, the decision of the State Canvassing Board to reject challenges to unmatched original damaged ballots counted in the recount was not in error and the relief requested by petitioner is denied.
Were some votes actually counted twice? The Franken campaign filed a response that said that Coleman’s camp provided no proof that this actually happened, and that there could be other explanations for discrepancies between the number of original and duplicate ballots and the Election Night vote total and recount totals. However, election officials have acknowledged problems in the recount process. The St. Paul Pioneer Press quoted Canvassing Board member Justice G. Barry Anderson, a Republican, saying: "I think it’s a very good likelihood that there is double counting here." The Pioneer Press also quoted Minneapolis City Election Director Cindy Reichert, a Democrat, saying, "I agree that there is a big issue here."
Should this issue be decided in Coleman’s favor it would probably eat into Franken’s lead somewhat. According to the Pioneer Press, of the 150 ballots the Coleman camp alleges were double-counted, about 100 of them were from "Franken-friendly" Minneapolis.
133 Missing Ballots?
The issue of "missing" ballots came up when election officials discovered a discrepancy between Election Day results and recount results for Minneapolis Ward 3, Precinct 1 . During the hand recount, canvassers tallied a total of 133 fewer ballots than had been recorded during the Election Day count. Some election officials believed the ballots had been placed in an envelope that had gone missing. A search turned up no additional ballots, however. Cindy Reichert, the city’s elections director, said at one point she suspected that election workers had fed some absentee ballots through the counting machines twice, but later backed away from that theory.
Minneapolis election officials eventually called off the days-long search for the "missing" ballots. The Star Tribune reported that city officials once considered subtracting the "extra" votes from both Franken’s and Coleman’s totals, with the candidates losing 80 votes and 34 votes, respectively. But the state Canvassing Board, over the objection of the Coleman campaign, unanimously decided to go with the Election Day results instead of ones reached during the recount. As a result of the board’s decision, Franken netted an additional 46 votes.
Update, Jan. 30: One of our readers asked for clarification on whether an envelope containing ballots was found to be missing. There is evidence that one envelope likely went astray somehow. Recount officials found Election-Day ballots in four white envelopes numbered 2/5, 3/5, 4/5 and 5/5, but nothing numbered 1/5. One election judge said he recalled seeing five white envelopes, but he couldn’t be certain. In Cindy Reichert’s full explanation of the missing ballots, she wrote that eventually Minneapolis election officials "determined definitively that the ballots were missing."
654 Absentee Ballots
At issue here are absentee ballots that were never opened or counted because they were not accepted by local election judges. Under state law, absentee ballots must meet several legal requirements before they can be counted. For example, an absentee envelope will not be opened and the vote not counted if the name and address on the return envelope are not the same as the information provided on the absentee ballot application.
Just before the recount began, the Franken campaign asked the state Canvassing Board to consider reviewing thousands of "improperly" rejected absentee ballots. Coleman objected, and the Canvassing Board denied the Franken request. But on Dec. 24 the Minnesota Supreme Court ruled in Franken’s favor, saying that absentee ballots should be counted if everybody – local officials, the Franken campaign and the Coleman campaign – agreed that they had been rejected improperly in the first place.
Local election officials came up with a total of nearly 1,350 absentee ballots that they believed should be opened and counted. But the Franken and Coleman campaigns could only agree on 933 of those. When they were opened and counted, Franken received 52 percent of them, for a total net gain of 176 votes, according to the Star Tribune.
Coleman then requested that 654 additional ballots be opened and counted as well. These ballots are reported to be from suburban and rural areas likely to favor Coleman. The court denied Coleman’s request but said he could raise the issue again during trial.
More recently, Coleman asked the three-judge panel to reconsider all previously rejected absentee ballots to find any that were wrongly omitted. The campaign claims that local election officials used inconsistent standards when accepting and rejecting some ballots. Coleman lawyer Joe Friedberg says he’ll ask the judges to review each envelope, a total of as many as 11,000 still-uncounted votes. Whether this process would eventually gain more votes for Franken or for Coleman, however, is something impossible to predict.
The Coleman campaign also has complained about "inconsistencies" in the way the Canvassing Board ruled on ballot challenges. It posted two such examples, and said: "In an election that is this breathtakingly close, such inconsistencies matter to the overall credibility of the count."
A review of some of the ballots available online at StarTribune.com, confirms that there were indeed some discrepancies. Some ballots that had ovals filled in for Coleman and also had an X through them (possibly indicating an attempt to void the choice), were counted for Coleman, while others were not. And in some instances, where the same kind of markings were made on ballots for Franken, the votes were counted in his favor. But some questionable calls went against Franken, too.
So far, the Coleman campaign has stopped short of making public allegations of partisan election-stealing of the sort seen in some right-leaning news sites. And we find no evidence of any partisan tilt in the Canvassing Board’s makeup or rulings. For one thing, the five-member board is bipartisan. It includes two men who were appointed to the state supreme court by Minnesota’s Republican governor, Tim Pawlenty. They are Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson. A third member, Ramsey County Chief Judge Kathleen Gearin, was elected to that post in a nonpartisan election in 1986, and hasn’t publicly discussed what her party leanings, if any, might be. A fourth member is Ramsey County Assistant Chief Judge Edward Cleary, who was appointed in 2002 by then-Gov. Jesse Ventura, an Independence Party member. The only clearly identified Democrat on the board is Secretary of State Mark Ritchie. And although Ritchie helped choose the panel’s members, Coleman’s lead lawyer, Fritz Knaak, said at the time: "The people of this state should feel good about who’s on the panel."
Furthermore, the board never divided along partisan lines. According to board member Cleary, "all of our major votes were unanimous."
It’s worth mentioning that the three-judge panel selected by Justice Page to oversee the trial is made up of Democratic, Republican and Independent appointees.
Where Are We Now?
So far Minnesota’s only current senator is Amy Klobuchar, a Democrat elected in 2006. And it could be weeks before she gets some help. After Coleman sued, Franken requested that an election certificate be issued declaring him the winner anyway. But his request was denied. Gov. Pawlenty issued a statement saying that he couldn’t issue an election certificate to Franken because of state law:
Pawlenty, Jan. 12: I have a duty to follow state law and our statutes are clear on this issue. I am prohibited from issuing a certificate of election until the election contest in the courts has been resolved.
Pawlenty’s statement cites Minnesota state law which explains that election certificates are not to be issued until seven days after the certification of election results, but that in the case of an election contest: "shall not be issued until a court of proper jurisdiction has finally determined the contest."
And Secretary of State Ritchie – a Democrat – agreed. He followed with a statement of his own saying that even if Pawlenty signed the election certificate before the election contest was decided, he would not:
Ritchie, Jan. 12: Minnesota law is very clear on when a certificate of election can be issued. Neither the governor nor I may sign a certificate of election in the U.S. Senate race until all election contests have reached a final determination. Even if the governor issues a certificate of election prior to the conclusion of the contest phase, I will not sign it.
After being denied by both Ritchie and Pawlenty, the Franken campaign filed a petition with the Minnesota Supreme Court, claiming that the governor and secretary of state were obligated to issue a certificate. The state Supreme Court said that it will address Franken’s request for an election certificate, but not before Feb. 5.
Franken, looking to avoid dragging out the process any longer, filed a motion to dismiss the Coleman election contest altogether. But on Jan. 22, the motion was rejected by the three-judge panel. It’s now on the Coleman campaign to show proof to back up all of its claims. The saga continues.
–by D’Angelo Gore
Update, April 16: On April 13, some three months after the trial began, the three-judge panel ruled in favor of Franken, saying that he won the election by 312 votes. Coleman’s attorney said he would appeal the decision to the Minnesota Supreme Court. For more, see our post on The FactCheck Wire.
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