Ballots Missing in Coleman-Franken Recount, Attorney Says

Democratic senate hopeful Al Franken’s campaign called on Minnesota Secretary of State Mark Ritchie Monday to locate ballots from several precincts in the state that are unaccounted for, the latest twist in the battle for the state’s senate seat that pits the former Saturday Night Live comedian against incumbent Norm Coleman.

In a letter sent to Ritchie Monday, Franken campaign attorney David Lillehaug, said he has learned “from a variety of sources…the alarming possibility of missing ballots in numerous precincts throughout the state.”

Marc Elias, the lead attorney for Franken’s campaign on the recount, told reporters Monday that the number of ballots cast in Washington, St. Louis and Clay counties on Nov. 4 don’t square with the number of ballots produced by those counties for the recount.

Ritchie’s office did not return calls for comment. 

According to the secretary of state’s website, 1,074 people in Clay County voted on Election Day but only 1,069 ballots were produced by the county for the recount. In St. Louis County, 1,649 people voted on Election Day but the county turned over 1,646 ballots for the recount. And in Washington County, 1,464 voted on Election Day but 1,449 ballots were turned over for the recount. The shortfall can easily shift the election to Franken or Coleman’s favor because the race between the candidates is so close.

“Missing ballots aren’t automatically an indication of foul play, but it should be a serious matter of concern,” Elias said. “We hope and call on the Secretary of State to issue clear instructions on all counties so that these ballots may be found and properly counted.”

Franken’s campaign also released a fact sheet calling attention to at least a half-dozen other cases where ballots have gone missing.

Coleman led Franken by 725 votes immediately following the Nov. 4 election. The razor-thin margin 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%.

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. As of Sunday evening, Coleman led Franken by 180 votes out of 2.9 million ballots cast, according to unofficial results released by state election officials.

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.

Lillehaug said the Franken-Coleman contest will likely turn out to be the closest senate race in the nation’s history and it’s crucial that every ballot is accounted for. He said after Coleman and Franken’s campaign, and the media, have previously raised the issue about missing ballots local election officials launched an investigation and “to their credit-located the ballots and counted them.”

Some ballots reported missing, Lillehaug said, later turned up in “machine trays, desk drawers, unmarked envelopes, and envelopes for other precincts.”

“Disturbingly, however, in some instances local officials serving as Deputy Recount Officials have refused to investigate and have instead brushed aside those concerns,” Lillehaug’s letter to Ritchie says. “For a hand count of ballots to be accurate, all ballots counted must be made available for review. In some instances, the ballots counted in the recount are fewer than the number of persons who voted (as reported by your office as having voted in that precinct). In an election this close, and with accuracy and transparency paramount, these differences are a serious matter.

“Accordingly, the Franken campaign requests that your office commence and immediate investigation to determine whether ballots are missing and, if so, to conduct a thorough search to locate them so that they may be promptly included as part of the recount of this important election.”

In the past, Franken has refused to acknowledge that election integrity is a serious issue that could put the wrong candidate in office.

But he shifted his stance on the issue a day after the Nov. 4 election.

He said his campaign was looking into “irregularities”, including some polling places in Minneapolis that “some polling places…ran out of registration materials.”

“Our office and the Obama campaign have received reports of irregularities at various precincts around the state,” Franken said in a statement.

Since the election, Franken has filed several lawsuits challenging the legal basis for rejecting some absentee ballots.

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.

Lillehaug told the judge 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 Elias, Franken’s recount attorney, at a press conference last week. “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.”

Ritchie said the canvassing board, the panel that he sits on which is overseeing the recount, will meet Wednesday to decide whether the absentee ballots Franken’s campaign said were improperly rejected should be included in the overall recount.

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.”

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