The Board of Canvassers that was convened to preside over the recount and rule on challenged ballots conducted itself honorably under difficult circumstances. In addition to board chairman Mark Ritchie, the Man from ACORN who is Minnesota’s secretary of state, four judges served on the board: Minnesota Supreme Court Chief Justice Eric Magnuson, Associate Justice Barry Anderson, and Ramsey County District Court Judges Ed Cleary and Kathleen Gearin.
I have known Chief Justice Magnuson professionally for more than 25 years. Justice Anderson was my law-school classmate and is my friend. In my view, they are two of the best judges serving in the Minnesota courts. Although the board’s rulings on challenged ballots favored Franken during the recount, there was no noticeable partisan division among the board. Accordingly, the imputation of misconduct to the board such as is implicit in the
Journal editorial is misplaced. Whatever inconsistencies the board committed in ruling on challenged ballots and other issues does not appear to have resulted from partisan mischief. In any event, the board’s ruling on challenged ballots put Franken up by only 49 votes.
The Franken campaign’s immediate recognition of the opportunity to “find” more votes with the “wrongly rejected” absentee ballots was crucial. It appears that the Coleman campaign erred when it failed to formulate its own countervailing strategy regarding the rejected absentee ballots. Perhaps most important, it should be noted that Franken’s margin expanded from 49 to 225 votes as the result of the inclusion of absentee ballots to which Coleman’s lawyers agreed.
Those who postulate Democratic shenanigans as the cause of Coleman’s difficulties fail to reckon with the
December 18 decision of the Minnesota Supreme Court on the inclusion of previously rejected absentee ballots in the recount. The Minnesota Supreme Court held that absentee ballots identified by local officials during the recount as wrongly rejected should be included in the recount subject to agreement of the parties (and also subject to the possibility of sanctions on the parties’ lawyers for withholding agreement in bad faith).
The Coleman campaign had argued (correctly, in my view) that previously excluded absentee ballots should not be included in the recount. The Coleman campaign was caught flatfooted by the Minnesota Supreme Court’s December decision. Coleman should not have agreed to the inclusion of a single one of these ballots until he secured some agreement on the uniform treatment of absentee ballots. Instead, Coleman’s team agreed to the inclusion of 933 of 1,346 previously rejected absentee ballots identified by local officials during the recount as having been improperly rejected. (In the election-contest proceedings, incidentally, Coleman claims that 100 of the 933 absentee ballots to which it agreed should be excluded. One wonders what the responsible lawyers on Coleman’s team were thinking during the recount.)
In its December 18 decision, the Minnesota Supreme Court handed Coleman the key to the election. He promptly threw it away. When the absentee ballots were opened and counted at the conclusion of the recount, Franken’s margin climbed from 49 to 225, where it ended. Yesterday, Franken’s margin was amplified by 87 votes deriving from 351 absentee ballots opened in the election-contest proceedings.
I watched the opening of the 933 previously rejected absentee ballots online on January 4. Coleman lawyers Knaak and Trimble were visibly nonplussed by the results, which put Coleman in a hole sufficiently deep that there is no apparent way out. This result fixed the dynamics and, I believe, determined the ultimate outcome against Coleman.
This is not to say that Minnesota’s election practices have been vindicated in the post-election proceedings. They have proved flawed. Two hundred and eighty thousand Minnesotans cast absentee ballots on Election Day. Election officials rejected approximately 12,000 absentee ballots for
noncompliance with Minnesota’s absentee-ballot statute. The evidence submitted by Coleman during the seven-week election-contest trial suggests that Minnesota’s absentee-ballot system is a Democratic
Trojan horse. According to the Coleman campaign, the counties that are careful about applying the requirements of Minnesota’s absentee-ballot statute are Republican-leaning counties, while the lax ones are heavily Democratic.
Coleman contends that he comes out a loser only under a system that allows for Republican counties to apply a strict standard and Democratic counties to apply a lax standard to the counting of absentee ballots. He may be right, though the Franken campaign disagrees, and it has had an impressive read on the universe of rejected absentee ballots.
The election-contest court has simply followed Minnesota’s absentee-ballot statute. Arguing, as Coleman has, that a panel of judges should disregard the Minnesota absentee-ballot statute seems like a losing proposition, at least to me. Nevertheless, it is true that some absentee ballots counted on Election Day would have been ruled illegal and excluded by the three-judge election-contest panel. Unfortunately, there is no way to identify and uncount them.
The logical implication is that we may never determine who actually received more legally cast ballots. Coleman formulates the issue in terms of equal protection and urges a lowest-common-denominator approach to the inclusion of rejected absentee ballots as a matter of constitutional law, but I am afraid he may have identified a wrong without a legal (as opposed to a political) remedy.
I admire Co
leman’s public service and believe he has been an outstanding senator. But since the election, the Coleman campaign has put on a performance that conveys a strong impression of complacency and ineptitude; the Franken campaign outhustled and outsmarted it.
Al Franken is a man with political views as ugly as his jokes are unfunny. He may also be the first U.S. senator to have joked about his past use of cocaine. In the 2002 oral history of Saturday Night Live assembled by James Miller and Tom Shales, Franken talked (pages 119–120) about using cocaine while pulling all-nighters writing for the show: “I only did cocaine to stay awake to make sure nobody else did too much cocaine. That was the only reason I ever did it. Heh heh.”
And I don’t think it can exactly be said that he won the election fair and square. Indeed, I can’t find a single good thing to say about him except that he didn’t steal the election.
— Scott W. Johnson is a Minneapolis attorney and contributor to Power Line.
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