DFLer Al Franken's campaign scored significant victories in the U.S. Senate recount Friday, as the state Canvassing Board approved the use of Election Day results for 133 Minneapolis ballots that can't be found and also recommended that counties sort and count absentee ballots that were mistakenly rejected.Those 1,600 votes will almost certainly give Franken the win, and Coleman knows it. Either way, I see this issue going before SCOTUS in the next couple of weeks. Coleman will not accept a result where he loses as a sitting US Senator, and Franken will certainly challenge SCOTUS should the Minnesota Supreme Court overturn the state election board.
But the five-member board revealed some fissures. That came when its two Supreme Court justices put the brakes on the apparent hopes of its two district judges to declare in advance that the board would accept the new results that include the previously rejected absentee votes.
The board chose instead to wait until those votes come in before deciding whether to accept them.
Coleman campaign officials planned to file a request today for an order from the state Supreme Court requiring counties to follow consistent standards for counting their rejected absentee ballots. They said they hoped to have a decision by early next week.
"This is the kind of chaos the board has walked us into that we are trying to avoid," said Coleman attorney Tony Trimble.
Marc Elias, Franken's lead recount attorney, called the Coleman petition "an extraordinary action to try and halt this count and re-disenfranchise these voters. ... This is all just smoke and mirrors. They are hoping to run out the clock, delay the counting of these ballots."
Earlier this week, more than half the state's counties and larger cities began to separate out wrongly rejected absentee ballots from those legitimately turned back under state law. Based on the numbers tallied so far by 49 counties and cities, officials estimated that there may be as many as 1,600 absentee ballots that should have been counted but were mistakenly excluded.
The board decision on the Minneapolis ballots means that Franken trails Republican Sen. Norm Coleman by 192 votes. Had the board accepted Coleman's argument that only the ballots that were recounted be accepted, his lead would be 238 votes.
The Franken campaign was plainly delighted with the outcome. The campaign believes he stands to gain from counting improperly rejected absentee ballots.
"It was a good day for the Franken campaign. It was a good day for all the voters of Minnesota who were concerned that their lawful ballots may not be counted," said Elias.
Would a precedent set by SCOTUS stemming from a challenge based on a "unified standard" be interpreted by lawmakers as a national standard on voting procedures? Possibly, but this is the type of case SCOTUS has been loathe to take up, claiming states can and should run their own elections.
But...this is a federal office. I'm not a legal scholar by any means, but the ramifications of this could be far-reaching. This won't be the last close election...and let's not forget Bush v. Gore either. The court had no problem deciding our President in 2000.
Keep an eye on this case. It could go a lot further than just the Land of 10,000 Lakes.