Coleman Camp: Let's Open More Ballots To See Whether They're Legal
The Coleman legal team is continuing to lay out their case that they want the question of rejected absentee ballots to be opened again -- and in some cases, to literally open the ballots to investigate.
Coleman lawyer Joe Friedberg has been questioning Washington County (Stillwater) elections official Kevin Corbid, and has been asking him about what have come to be known as "3A" ballots -- a category where a newly-registered absentee voter included their registration card inside the internal secrecy envelope containing the ballot, rather than immediately inside the outer envelope as it was supposed to be done.
Election officials now believe that 3A ballots should be considered to have been legally cast. The problem here is how one identifies a 3A ballot.
Friedberg asked Corbid if it would be possible to have someone open up the secrecy envelopes -- blind to the content of the vote inside -- and find out if there's another card in there. Corbid suspected that some precincts on Election Day might have already done this, giving the voter the benefit of the doubt, while others did not.
"If you were given a directive now on how to do it," Friedberg asked, "how long would it take you to take that class of ballots, open them and see if there's registration materials in there?"
"You know, without having the list in front of me, our subset is fairly small," said Corbid. "I think it would be an hour or two at most."
The whole question of improperly-rejected absentee ballots originated when the Franken campaign was complaining about votes having been tossed because of administrative error, a fight that Coleman was initially opposing. Now that Coleman is behind, he's not only taken up that fight but has also been going one step further -- championing ballots that were rejected because of voter error.
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Coleman is just running interference for the GOP while the stimulus package is in the Senate. He's just throwing this hail mary pass in the courts, knowing he has nothing to lose. Worst case the court decides against him, anything else and it's to his favor.
February 3, 2009 11:26 AM | Reply | Permalink
This is exactly what I have been thinking. It seems that the sole Republican strategy these days is obstructionism.
February 3, 2009 12:47 PM | Reply | Permalink
Go ahead and open them. What are the chances that Coleman gains votes on new registrations?
February 3, 2009 11:53 AM | Reply | Permalink
No, on principle. Expediency is not the rule of law.
February 3, 2009 2:59 PM | Reply | Permalink
Actually, it shouldn't be necessary to open them. Just squeeze them gently from the side then shake the envelope. The larger ballot should not rattle because of the squeezing of the envelope with the smaller registeration card rattling around if it is present. The odds are pretty good that the only thing inside that envelope is the ballot, causing it to be rejected. Now Coleman would probably come back with "what if they stapled it to the ballot". Worst case, the ballots could be opened "in chamber" where neither Coleman nor Franken representatives could physically see the ballot.
February 3, 2009 4:01 PM | Reply | Permalink
When does this ever end? There is no shame on the part of the GOP to continue to drag this on like this.
February 3, 2009 11:55 AM | Reply | Permalink
I think Franken should just call Norm's bluff and agree to open and count all 12,000 absentee ballots.
It is hard to believe Al wouldn't garner 60-70% of those votes.
February 3, 2009 12:21 PM | Reply | Permalink
Considering the close contest, I think your projected percentage favoring Al Franken is way too high. But I'll agree with you that a majority of those previously discounted absentee ballots would probably tilt in his favor.
Regardless, we're now into February, and Minnesota voters are congressionally disenfranchised, having been short one United States senator for a month now.
The courts need to act responsibly and seek prompt resolution to this self-inflicted impass, rather than drag their heels over each filed motion, thus allowing Norm Coleman's perpetual litigation to play out in ordinary time, as though it's an ordinary civil lawsuit against a private party -- which it most certainly is not.
February 3, 2009 2:55 PM | Reply | Permalink
Simple: weigh the envelopes to determine if card is inside
February 3, 2009 12:44 PM | Reply | Permalink
It is no longer about who wins, Coleman knows he has lost. It's about denying the democrats in the senate a vote for as long as possible. sigh.
February 3, 2009 12:56 PM | Reply | Permalink
The point of the hand-recount was largely to include some ballots with voter error (such as not filling in the oval completely.)
Counting some Absentee Ballots which were rejected because of voter error is reasonable.
I want people who didn't sign the outer-envelope to get a chance to do so now.
February 3, 2009 1:20 PM | Reply | Permalink
Idea 1: Give all voters who made an error an opportunity to fix their mistake? Probably isn't simple, but certainly easier than a whole new election.
Idea 2: Stick a fork in Coleman.
February 3, 2009 2:08 PM | Reply | Permalink
Coleman's strategy is offensive to an organized system of laws. It may sound nice, but what his team is saying is, "Let's disregard all protocol and see what we find." That would be similar to saying, "Let's forget about evidence laws, and let anybody submit anything they want, and we'll sort it out later," or letting the government say, "Forget about Constitutional protections, let's search anybody, any time, and if we find anything we want to use against them, yippee."
Voting needs guidelines. If the guidelines say do steps 1, 2 and 3, and a voter doesn't follow the instructions, then their vote doesn't count. Otherwise, we are left with decisions being made solely the discretion of a few individuals. If steps 1, 2 and 3 are confusing or disenfranchise a class of voters, then the law needs to be fixed, but not retroactively.
This is one more argument that indicates his legal strategy is nothing more than a fishing expedition, rather than a case specifying clear error(s) occurred.
What he's really asking is for the judges to set aside precedent, take a risk, and see what happens. Judges, in general value precedent and are very hesitant to take risks or stick their necks out too far, especially when the outcome is unknown.
The more he asks, the easier it will be for the judges to hear all his arguments, then rule against him. I'd love to see them dismiss his lawsuit on Franken's motion after Coleman rests, but I don't think it will happen. If they do that, it gives one more issue to Coleman on appeal. As I've said before, I think the judges are sitting back, letting Coleman play his entire hand, then they'll hear from Franken's team, and then rule that Coleman simply didn't convince them, so he loses.
February 3, 2009 2:15 PM | Reply | Permalink
Wouldn't that mean that ballots where the voter didn't correctly fill in the oval shouldn't count?
The standard is and has always been that elections are held for the voters, not the candidates, and that anything that makes it harder for the voter to cast his ballot had better be balanced by a very important reason. Matching signatures qualifies, since it's the only way they have of verifying the provenance of the ballot. If the voter mistakenly puts the card inside the envelope, why should the ballot not be counted? What part of the election integrity would be compromised?
February 3, 2009 2:35 PM | Reply | Permalink
You make a good point. The difference, if any, is that the law says the ballot should be counted if the voter's intent is apparent, which is a discretionary call. In the case of an X versus a filled in circle, the intent is apparent.
On the other hand, registration is a procedural issue. You either register in advance, or register (apparently) by mailing in a registration card, and putting it in the outside envelope. When the outer envelope is opened and a registration is there, it is a valid ballot, and it's put in the pile to be counted. If the voter is not previously registered and there is no registration card in the envelope, then it's not a valid ballot, just like if the outer envelope isn't signed, or the signatures don't match, or the ballot doesn't arrive by the deadline. When a ballot doesn't meet the procedural minimums, the law says it should not be counted.
Once the door is opened to second-guessing the procedures, then the procedures become meaningless, and every election is ripe for challenge. The old slippery slope argument.
I don't completely support this argument personally, but I think it is more legally defensible. I do believe that the time to get rid of unverifiable Dieboldt machines, butterfly ballots, ambiguous ballot instructions, and any other procedural issues is before the votes are cast, or before the next votes are cast.
February 3, 2009 3:07 PM | Reply | Permalink
There is no statute saying that if voters place their cards in the wrong part of the envelope, then their ballots can't count.
At least none that I've heard of.
February 3, 2009 3:57 PM | Reply | Permalink
Well said. That approach has the virtue of drawing a bright line as to where the rules should be strictly applied and where there should be a more flexible implementation.
Funny, it used to be Republicans insisted on a strict interpretation at all points, saying that if the voter was too stupid to follow instructions, too stupid to fill in the oval so that the machine could read it, too stupid not to be confused by poor ballot design, well, that was just too bad. They had no business voting anyway.
Obviously, that was before it was evident that Democratic voters are not the only ones who sometimes have trouble with following instructions to the letter and marking the ballot properly.
February 3, 2009 3:59 PM | Reply | Permalink
re Mr.E. -- That's about how I see it. One qualification:
There are two kinds of fishing expeditions, good and bad. The court should stick with the good kind. Taking a second look at absentee ballots to find improperly rejected votes is a good kind of expedition. I found the Court's method to be questionable (let the candidates decide which ones to count), but now I don't see how Coleman has grounds to change that.
Self-disenfranched voters are just out of luck, in my view. If someone "forgot" to sign the envelope, that's too bad for the person at this point. OTOH, the burden of proof could be shifted from the voter to the State: Count all absentee ballots which cannot be proved to be illegal, don't reject any on mere technical grounds. If the voter is registered correctly and did not vote otherwise in this election, count the vote. Even a simple 1,2,3 step process might be too much of a burden for all to bear.
On a practical side, I would be very surprised if Coleman gets a net increase in votes from counting more ballots, so his hope has to be to count only cherry-picked ballots. But that should be an obvious wrong to the Court.
February 3, 2009 3:12 PM | Reply | Permalink
I forgot to mention: Remediation is the general principle for my OTOH. Missing signature can be remedied, the voter comes in with ID and signs the envelope in the presence of an election officer, the signature is checked against the ID and the absentee ballot application. If okay, ballot is opened and counted "as is" (voter not allowed to change the contents of the ballot such as explaining 'intent' or making added marks on the ballot).
And other technical issues may have similar remediation options.
February 3, 2009 3:23 PM | Reply | Permalink
That's what they do here in Oregon, where it's mail-in only. Ten days to fix any technical flaws after election day.
February 3, 2009 4:22 PM | Reply | Permalink
It seems to me that the only ballots left are the absentee ballots that were rejected because they met one of the 4 reasons to reject an absentee ballot. So, now Coleman wants to go through properly rejected absentee ballots to find ones that have a registration card in the wrong place. If the absentee ballot was rejected, what difference does it mean where the the registration card is?
Norm is getting more and more out there as the days go by.
February 3, 2009 3:44 PM | Reply | Permalink
Let's face it, this is just useless screwing around at this point. Sure, there may be legally cast sbsentee votes excluded, but they were excluded for under rules with no apparent bias for one candidate or another. Some were excluded for technical reasons. However, the candiates did negotiate on what absentees should be added, I believe by court edict. And the lizard person ballot looked like a pretty good Franken vote to me, but was set aside.
The election was recounted and certified. It will take more than technical/human error to overturn it.
February 3, 2009 4:06 PM | Reply | Permalink