Provocation of The Day: Coleman Could Still Win

In some ways, Al Franken's 225 vote lead the Minnesota Senate race is an illusory number. That's his margin after the state canvassing board completed its recount. Why isn't he in the Senate?

Thank Gov. Rod Blagojevich.

Senate Majority Leader Harry Reid, in trying to delay Blagojevich's appointment from taking the seat, stated for the record that unless Roland Burris presented a valid certificate of election, he wouldn't be welcomed to the Senate.

The Minnesota canvassing board doesn't certify a winner; it simply certifies a count. Here we are in the contest phase. In legal terminology, it's a de novo trial - totally new. It's not an appeal of the canvassing board's decision.

First, Coleman will try to establish that the canvassing board count isn't complete - that is, there are still uncounted ballots from a variety of sources. The canvassing board concedes this. The Minnesota State Supreme Court concedes this. Even Al Franken's legal team has conceded this, contending in a brief to the contest judges that certain ballots lawfully cast for him have not yet been counted due to irregularities. Not all the ballots have been counted, fine. The contest board is specifically charged with establishing an accurate vote count.

So Coleman will try to establish that the ballots have not been counted uniformly, and the different methods led to an inaccurate count. There is evidence for this. Franklin's lead is due in part to his legal team's deft maneuvering around the issue of counting mistakenly rejected absentee ballots. The canvassing board asked counties to send them ballots they rejected on election night and subsequently realized that they were in error. More ballots were sent in from precincts that Al Franken won than from precincts Norm Coleman won -- the Coleman team believes this is because local Republican election officials were reluctant to declare their own efforts as being in error -- something about pride.  This point is in dispute. The point is that there were different standards used by different counties to reject absentee ballots. This tranche of ballots adds up to about 12,000 votes. Between a third and a fifth of ballots either shouldn't have been counted - or should have, but weren't. The Coleman team estimates that more of these ballots come from Coleman counties than from Franken counties. 18.9% of the precincts reported a different number of ballots for election night than turned up recount.

This discrepancy appears before the numbers are reconciled with the election rolls. Coleman might also narrow the margins if the contest board absorbs his arguments about double counting. If an original ballot is mangled on election day, election judges are required by state law to make a duplicate ballot, code it, set aside the original, and then run the duplicate through the machine. A number of individual precinct election officials forgot to mark some of the duplicate ballots.

That had consequences for the recount and the subsequent canvass. Where it becomes difficult for judges is in trying to reconciling disparate totals - how do they fix it? Do they add votes? Take them away? The judges will probably avoid this particular route. If you get into this margin where judges have to take away or add votes - artificializing the vote count in the mind of the public - then the clamor for a whole new election will increase. Actually, if Coleman begins to make up the 225 difference, Democrats might be the ones calling for a new election.