Minnesota’s State Canvassing Board will meet Wednesday and could issue a key ruling on the fate of more than 1,000 absentee ballots rejected by election officials that may tip the balance of the bitterly fought senate race between incumbent Norm Coleman and Democratic challenger Al Franken in favor of the former comedian.
As of Sunday evening, Coleman leads Franken by 180 votes out of 2.9 million ballots cast, according to unofficial results released by state election officials.
Coleman held a 215-vote lead going into last Wednesday’s recount, which election officials are now conducting by hand. Minnesotans cast ballots counted by optical scan voting machines.
Coleman led Franken by 725 votes immediately following the Nov. 4 election. The tight race between the candidates resulted in an automatic recount, which Minnesota state law says is triggered if the margin of victory is less than half of 1%.
A Franken victory would give Democrats 59 seats in the U.S. Senate. There is still an undecided senate race in Georgia where a runoff between incumbent Republican Saxby Chambliss and Democrat Jim Martin is scheduled for Dec. 2. A Democratic victory there would provide the party with a 60-vote filibuster-proof majority.
Secretary of State Mark Ritchie, who is one of five members of the canvassing board, the panel overseeing the recount, said he expects all 87 counties in Minnesota to meet the Dec. 5 deadline set to complete the recount. About 66% of the nearly 3 million ballots have been counted thus far, Ritchie said.
On Wednesday, the canvassing board will take up the issue of the absentee ballots Franken’s campaign said should be included in the recount.
Franken’s campaign believes that some of the absentee ballots that were wrongly rejected, if included in the recount, could swing the election in his favor. His campaign says it has already obtained evidence that shows hundreds of legitimate voters had their absentee ballots disqualified on “mere technicalities.”
Last week, Ramsey County District Judge Dale Lindman granted Franken’s campaign a temporary restraining order and said Ramsey County election officials must turn over the voter lists to Franken. Ramsey County is Minnesota’s second largest county. It rejected 761 absentee ballots. Lindman ordered county election officials to provide Franken’s campaign with “existing written information regarding the reason for accepting or rejecting an absentee ballot.”
Franken’s campaign wants to review the lists to ensure that individuals whose ballots were rejected were truly ineligible to vote.
David Lillehaug, a Franken campaign attorney, told Lindman information provided to the campaign by more than a dozen other counties showed cases where voters believed their absentee ballots were wrongfully rejected.
Voters who cast absentee ballots “did everything right, and yet their votes were not counted,” Lillehaug said. “It is clear to us that mistakes have been made.”
Franken’s campaign said the canvassing board “must” include absentee ballots that were improperly rejected in the recount.
“The [canvassing] board must consider and take into account all ballots cast — including validly cast absentee ballots that have been wrongfully rejected,” states a legal memo Franken’s lawyer sent to the board.
Franken’s campaign filed a legal brief with the canvassing board that contained sworn affidavits from Jessup Schiks, Bruce Behrens, James Langland and Ordell Adkins, all of who voted for Franken via absentee ballot and had their ballots rejected for reasons that included signatures that didn’t match one that were on file with the state or inconsistent mailing addresses.
In the case of Langland, he voted by absentee ballot prior to Nov. 4, in person, at his local election office, because he said he was going to be out of town on Election Day. However, his ballot was rejected due to the absence of a witness signature.
“Dr. Langland did everything correctly,” said Mark Elias, an attorney working with the Franken campaign on the recount, during a press conference Monday in St. Paul. “He actually went to the recorder’s office and asked them to witness the signature. And due surely to human error and nothing more, it resulted in it being rejected.”
In a three-page opinion issued to Secretary of State Mark Ritchie on the matter, Minnesota Assistant Attorney General Kenneth Raschke Jr. said the Canvassing Board’s job is to count the ballots, and any decision on whether absentee ballots should be included in the recount is for a judge to decide.
“Courts that have reviewed this issue have opined that rejected absentee or provisional ballots are not cast in an election,” Raschke wrote.
But Franken’s attorneys said Raschke’s opinion contains “significant error.”
“In fact, both state law and key decisions from other states require that improperly rejected absentee ballots be included in the recount of an election,” says the seven-page legal brief Franken’s attorneys filed with the Canvassing Board Tuesday. “The Board can, and should, make it clear that those ballots can and should be included during the course of this recount.”
Coleman’s campaign, meanwhile, said Franken’s attempt to get the Canvassing Board to include absentee ballots in the recount proves that the Democratic challenger does not have the votes to win the election.
“The Franken campaign’s decision to demand that the State Canvassing Board accept rejected absentee ballots was a blatant admission they do not have the votes to overturn the re-election of Norm Coleman,” said Fritz Knaak, Coleman’s recount attorney. “However, their public statement that – failing to succeed in this desperate and unprecedented act tomorrow – they will ask the State Canvassing Board to stop the recount is breathtaking in its far-reaching scope that could leave Minnesotans without a senator in January. Minnesotans will not stand for this obvious effort to win through a legal system what the Franken campaign could not win through the ballot box.”
In addition to the absentee ballot issue, the Coleman and Franken campaigns have also flagged 1,893 ballots where they claim voter intent is unclear.
However, a decision on which candidate will benefit from those votes won’t be determined until a Dec. 16 meeting of the canvassing board. Challenged ballots are set aside and will not figure into the candidates’ vote total until the canvassing board decides how a voter intended to vote.
The 945 ballots Franken has challenged led the senate candidate to claim Friday that Coleman’s lead is now just slightly below 100 votes.
“The ballots that have been counted are slightly redder than what has been counted. There is a slightly bluer hue to what is left to be counted,” said Franken campaign attorney Marc Elias. “We believe that Al Franken has gained enough votes to say that Norm Coleman’s lead is in the double digits.”
Coleman’s campaign has challenged 948 ballots, some of which show a vote for Republican presidential candidate John McCain and Democrat Franken for senate. Coleman’s campaign does not believe voters intended to split parties in their votes.
“In at least some instances, there are challenges that are being lodged that are clearly frivolous,” Elias said about Coleman’s ballot challenges. “It must be heartbreaking for the people down there that there are people who voted for John McCain who didn’t also want to vote for Norm Coleman.”
At a news conference last Friday, Coleman campaign manager Cullen Sheehan spoke to reporters in a room where 50 ballots from one Minnesota county the Franken campaign had challenged were plastered all over the walls. Sheehan said the ballots clearly showed the oval was filled in for Coleman but that Franken’s campaign challenged the ballots.
“They need to show from the public perspective that they are gaining momentum and it is not reality,” Sheehan said. “It’s simply that they’re challenging more ballots.”