Coleman Actually Getting Somewhere Today?
Norm Coleman's legal team this morning appears to be accomplishing what they haven't done much of for the last week: Doing something right.
The Coleman campaign has called Ramsey County (St. Paul) elections direct Joe Mansky to the stand, and they're going over the training processes and overall procedures that go into accepting or rejecting absentee ballots. And the discussion has brought them to examining individual ballots that have still been rejected and kept out of the count.
Mansky was shown several examples where he said errors by elections officials in preparing the ballot -- such as placing a sticker on top of the instructions or even blocking out portions that the voter was supposed to fill out -- should effectively release the voter from the obligation to fill those out to the letter.
Mansky confirmed that some votes now exist out there that have not been counted and should not have been rejected -- the central point of Coleman's current quest to reopen the question of improperly-rejected absentees.
Coleman attorney John Rock then took this one step further, asking Mansky to take a look at a ballot that was rejected because of a bad driver's license number, which Mansky said is not a proper reason to exclude a ballot, and is not currently in the count. He then compared that a to a ballot in Ramsey County that was initially rejected for this same stated reason, but is now in the count after a number of previously-rejected ballots were opened up four weeks ago.
The Coleman team has been trying to demonstrate that variation in the treatment of ballots throughout the state -- all done by individual human beings acting in good faith, and under officially uniform rules -- has amounted to unequal treatment and a violation of equal protection. The testimony so far has gone some way in furthering this goal, though it remains to be seen whether they've met the legal threshold to take action.
So Coleman appears to be finding a decent footing today. This whole matter raises two questions: 1) Can he obtain a re-review of the absentee ballots under more permissive standards; and 2) Would a full and fair resolution of these problems, sans any cherry-picking, result in gains for him?
Josh
Matt
Eric
Brian
Didn't Al win absentees by double digits? Why is Coleman doing this? Isnt he, in fact, risking that likelihood that Franken's lead will grow if theyre all counted?
January 30, 2009 12:32 PM | Reply | Permalink
You're probably right, I think, in that a non-cherry-picked sample of absentee ballots would be likely to favor Franken. The assumption is that the rejection errors we see out there essentially make up a random sample of all absentees, which Franken won by around ten points.
But really, what's the worst thing that could happen for Coleman? If nothing happens to change the status quo, he loses anyway. He might as well try to get a good sample.
January 30, 2009 12:37 PM | Reply | Permalink
i think everyone is assuming that the 950ish ballots that were already opened is representative.
It is possible that both coleman and franken cherry picked, and that franken was just a lot better at it.
January 30, 2009 12:53 PM | Reply | Permalink
Mathematically, Coleman has no other way to make up 225 votes without a surprise in the remaining unopened absentee ballots.
January 30, 2009 12:37 PM | Reply | Permalink
It's all about the two Ds- delay and delegitimization. That's what the people pulling his strings want out of this.
January 30, 2009 12:38 PM | Reply | Permalink
That might work if Franken's term was 2 years. But this is the Senate--the delegitimization argument will be almost forgotten in 6 years by most voters. That leaves us with needless delay.
January 30, 2009 12:48 PM | Reply | Permalink
They hope to limit the reach of Franken's voice all through his term. He's the kind of progressive who really scares the economic royalists.
January 30, 2009 12:54 PM | Reply | Permalink
heh heh, a politician who can tell a joke scares them? But seriously, from my position over a thousand miles from Mn, it looks like Coleman's the one who is looking like the sycophant (probably not exactly the word I'm looking for, but you get the meaning).
January 30, 2009 1:04 PM | Reply | Permalink
Limit his voice how? His vote still counts the same. Freshman senators don't have a lot of power anyway. I'm just not buying the whole delegitimizing argument.
Even delay doesn't make a lot of sense. The most they're going to get out of this is a few more weeks.
I think they know they're probably going to lose at the state level and they're setting themselves up for a federal suit where they think they have a better chance. That's the purpose behind all the equal protection arguments. They're hoping for a rerun of Bush v. Gore.
January 30, 2009 1:23 PM | Reply | Permalink
I still don't understand how the Judges can change the rules retro-actively. Also it will be interesting to see where the Franken lawyer goes with this witness when he has his chance with him.
Most damning is still the fact that Coleman's camp argued against what they're arguing for now. That shows not concern for the voter as they are trying to claim now but rather pure politics.
January 30, 2009 12:47 PM | Reply | Permalink
Yeah, I wonder what the judges are thinking about all of these proceedings? To be that fly on the wall...
January 30, 2009 12:49 PM | Reply | Permalink
This is a lot like accepting ballots even when the voter didn't properly fill in the circle. The long-standing principle is that elections are held for the voters, not for the candidates. Voters should have their voices heard whenever possible. If the absentee ballot has some non-substantive defect it should be counted.
January 30, 2009 1:36 PM | Reply | Permalink
The flaw in this line of argument is that the inequity was not caused by the law, or rules, or procedures: things that the government should and can make equitable to all voters. What they're complaining about is that individual people, in the process of doing their jobs, all in good faith, may have slightly different interpretations of any given ballot they're evaluating. By that standard, no election can ever be free of unequal treatment and will always be in violation of equal protection laws. I see no way any judge worth their salt could buy Coleman's argument. The precident it would set would undermine each and every election ever held going forward.
January 30, 2009 1:06 PM | Reply | Permalink
That is definitely a concern. Once you get down to the most minute levels of a large administrative matter — it could be anything from a Senate election to standing in line at the DMV — true equal treatment is physically impossible.
January 30, 2009 1:22 PM | Reply | Permalink
Eric
I have no idea of what you are talking about -- what do you mean by "true equal treatment". As I understand it, according to Minnesota election law, "equal treatment" would seem to imply that every attempt is made to ensure that the intent of every legal voter is accurately tallied.
It does NOT mean that all ballots need to be exactly the same kind of ballot; nor does it mean that the all ballots need be marked in the same (intent may be recorded by "filling in the oval" or by making a check mark (in though instructions call for filling in the oval).
Coleman's challenge now seems to be zeroing in on a glitch in Minnesota election law that did not allow for the review of wrongly rejected absentee ballots. This issue of wrongfully rejected absentee ballots is an equal protection issue and it now seems to be the primary thrust of his challenge.
My assumption is that the Minnesota Election Contest Court is familiar with Minnesota election law where the principle of "counting every legally cast vote whenever voter intent can be determined" take president over all other principles. If there has been a problem of wrongfully rejecting legally cast absentee ballots, then I think that in the name of equal protection, the Election Contest Court would be very reluctant NOT to explore the nature and degree of the problem, and error on a "worst case" scenario -- which would probably result in initiating some kind of review of those ballots identified as wrongly rejected.
If Coleman's legal team can raise doubts as to whether a significant number of wrongfully rejected ballots exist which, if counted, might result in a Coleman victory, then such a review of wrongfully rejected ballots -- whether it be random to begin with, or a total review -- would be "a remedy". So what the problem? Am I missing something? Doesn't Coleman have the right to the the contest? To raise concerns? And to seek remedies, is there is a chance that those concerns might be grounded, especially, if those concerns point to the possibility of problems with "equal protect"? Or do you have a different understanding of what "equal protection" might mean in the context of the Coleman-Franken contest.
Of course, like Tyler Oakley suggests, Coleman IS risking the likelihood that Franken's lead will grow. However, Coleman also understands that there is still the possibility, no matter how small, the Franken could lose. That possibility might increase in relationship to the total of reject absentee ballots that are included for review.
January 30, 2009 2:45 PM | Reply | Permalink
Of course. The choice is between slim and none, so naturally Coleman is opting for slim.
I wonder how far Minnesota should be expected to take this. All of the rejected absentee ballots were examined a second time, and I thought the local election officials were reminded of the conditions that should disqualify a ballot. Franken was for counting all of those identified by this procedure; Coleman was not. Is it reasonable to ask yet another set of eyes to re-examine all rejected absentee ballots?
I don’t doubt that there are still absentee ballots that should have been counted. Almost certainly, most of the ones that the Franken and Coleman representatives rejected in the re-examination of the absentees ballots should be counted. That’s one area of the recount that hasn’t been as transparent as the other parts. As far as I know, these ballots were not put online with the reason the respective campaigns rejected them (probably for privacy reasons, since many involve the voter’s signature).
January 30, 2009 3:06 PM | Reply | Permalink
As I see it, Coleman has two problems with this line of argument:
1. Having scoured the 11,000 absentee ballots he's come up with a small number of inconsistencies. But having scoured 11,000 ballots to find them, they are, ipso facto, not representative. Claiming these small number as evidence that there are enough other inconsistencies to swing the election is not logically warranted. The rejected absentee ballots have been examined by county officials not once, not twice, but three times. Of 11,000 ballots they came up with about 1000 that were wrongly rejected. To gain 215 votes, Coleman would have to get as many as another 1000 ballots admitted even if they were from predominantly Republican areas. A broader distribution would require several times that. Do the small number of inconsistencies Coleman has uncovered imply that there are that many more? Doubtful.
2. Even if he convinces the judges that there's a possibility of a significant number of admissible ballots, how does he propose they find them? Should the judges themselves examine all 11,000 absentee ballots? That's not likely. A random sample? Given the small margins involved the sample would have to be several thousand ballots or the sampling error would be larger than the number of votes Coleman needs. Have county officials go back and examine them a fourth time? That's not going to accomplish anything. What's the remedy?
January 30, 2009 3:13 PM | Reply | Permalink
Exactly. Different counties have different types of voting machines. Does that violate equal protection? Do we need to give some kind of competency test to election judges to ensure that they're all exactly the same? What Coleman seems to be arguing is that elections have to be perfect. It's impossible.
Moreover, as regards the 11,000 absentee ballots, even if the judges agree with him, what are they going to do? Are they going to examine all 11,000 ballots themselves? Hardly likely. You have to do more than make an argument. You have to have a reasonable remedy, and I don't see one.
January 30, 2009 1:32 PM | Reply | Permalink
Equal protect does not require that the exact sames "means" are employed in voting process. The use of different kinds of voting machines is not, to my understanding, a violation of equal projection. The issue is not the "means" (the kind of voting machine for example); but rather,it is the "ends" (which is to ensure that every legally cast vote is accurately accurately). You may vote by machine; I may vote my absentee ballot. They may not be the same "means" of voting -- but the "ends" are the same.
You may have filled in the oval, I many have placed a check in the oval. The means is not necessarily important (unless our intent can not be determined) Minnesota election law is not really concerned with whether it is an filled-in-oval or a check-in-the-oval. What it is of concern is whether our "intent" was accurately recorded in the tally of votes. If my intent is not tallied and your is, then we have an issue of "equal protection" -- especially if this kind of discrepancy has statistical significance.
Equal protection for you and for me means that the intent of my vote and the intent your vote are accurately tallied -- independent of the kind of machine, the kind of ballot, the kind of marked we use to indicate our preference.
January 30, 2009 3:15 PM | Reply | Permalink
Except that different methods of voting may make it harder to determine intent. The famous punch cards are a good example. If it's harder to determine voter intent, that's unequal. I can come up with all sorts of differences that result in equal protection violations.
Arguing the election is not perfect is, to me, a losing argument. They can go back and re-examine those 11,000 ballots a dozen times and it still won't be perfect. Elections don't have to be perfect - they need to be as good as we can make them.
January 30, 2009 4:42 PM | Reply | Permalink
I agree with you that elections should be as "good as we can make them" -- and that is what "good election law" is intended to accomplish.
Giving Coleman the right to make a challenge at the Minnesota Election Contest Court is a means helping ensuring electoral integrity.
Reviewing wrongly reject absentee ballots may be a way for helping to ensure that the declared winner is the contestant who has received the most validly cast votes.
With regards to your example of the hanging chads, the problem there wasn't that different types of machines were used; rather it was that the machines were mechanically flawed. Correct?
January 30, 2009 5:04 PM | Reply | Permalink
Does he not also have to show that the discrepancies in the process benefited Franken and /or harmed himself?
January 30, 2009 1:46 PM | Reply | Permalink
Hi bl mack
My assumption is that Coleman would need to raise enough of a concern with the Election Contest Court that there is a possibility that the candidate having the most votes can't be determined without reviewing some or all of the wrongly rejected ballots and that this is what his legal (with Freidberg)is attempting to do. I would assume that the Coleman team need to show that there is reason for believing that he MIGHT have been harmed by the process.
By the way, Friedberg is a very good trial lawyer -- I met a judge yesterday who said that his is the kind of guy that could sell you a refrigerator when you don't need one. I think he is 70 years old and has been quoted as saying: "I'd do anything for Norm ... accept vote for him. Freidberg is apparently a Democrat.)
January 30, 2009 4:24 PM | Reply | Permalink