With the main work of the Minnesota Canvassing Board on the Minnesota recount complete, it has been reported that Al Franken holds a 48 vote lead. What's left to do? One thing is to deal with certain rejected absentee ballots. The Minnesota Supreme Court issued a ruling that required the parties to try and work it out and identify which ballots should be counted (MN NPR reports the camps have come up with a system for dealing with these ballots but as I read it, it is an agreement to agree to a system, not an actual agreement). It can safely be assumed that the parties will not agree on all or even most of the ballots. But one assumes a consistent standard will be applied eventually. More importantly, Norm Coleman wanted none of these ballots counted and Franken wanted all of them counted, meaning that both campaigns believe there are more Franken votes than Coleman votes in these rejected absentee ballots.
To wit, Coleman seems to be behind the 8-ball now if the Canvassing Board tallies are the final word. Are they? Well, Minnesota provides for a contest procedure More . . .
Who can file a contest? "Any eligible voter, including a candidate, may contest in the manner provided in this chapter . . ."
On what basis can a contest be filed? "The contest may be brought over an irregularity in the conduct of an election or canvass of votes, over the question of who received the largest number of votes legally cast, over the number of votes legally cast in favor of or against a question, or on the grounds of deliberate, serious, and material violations of the Minnesota Election Law."
Basically, in an election this close, Coleman can contest the election on any and all grounds that effected the count in this election. Including but not limited to every single contested decision by the Canvassing Board.
So here comes the important question, what is the standard of review for a court to review the decisions of the Canvassing Board?
When a contest relates to the office of senator . . . the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election. The judge trying the proceedings shall make findings of fact and conclusions of law upon that question. . . .
That sounds like the court can conduct a de novo review of the Canvassing Board decisions on the challenged ballots to me. My quick look at Minnesota state law found no decisions on the standard of review and the deference to be given to the decisions of the Canvassing Board. Realistically, Coleman will likely limit his contest to particular ballot decisions by the Canvassing Board on his challenges plus any general standard of ballot review decisions that the Canvassing Board made with specific reference to ballots that were effected by those decisions.
The Canvassing Board is not likely to certify the results before mid-January and a contest can be filed within 5 days of the certification. Even an expedited process would likely put the final decision into February at the earliest.
At this point, one has to ask this question, what does Norm Coleman think of this statement now?
You gonna "step back," Senator Coleman? Do you really want to deprive Minnesota of a duly certified Democratic Senator while momentous decisions are being made in Washington at the very beginning of a Democratic Presidential Administration?
I am joking of course. My own view is that Norm Coleman should do everything within his legal rights to uphold the views of his voters - including fully adjudicating a contest of the election in the Minnesota courts. Nothing matters more than upholding the rights of voters to have their votes counted.
