Franken Benefits: Coleman Lead down to Two Votes
Minnesota Supreme Court: Count rejected absentee ballots
By PAT DOYLE , Star Tribune
December 18, 2008
In a ruling crucial to the disputed U.S. Senate election, the Minnesota Supreme Court Thursday rejected an attempt by incumbent Norm Coleman to block the state Canvassing Board from counting improperly rejected absentee ballots.
However, the court ruled that the campaigns of Coleman and Democrat Al Franken, along with Secretary of State Mark Ritchie and vote canvassing boards establish a uniform standard for identifying and counting such absentee ballots. The court said they should then be added to the tally.
As many as 1,600 absentee ballots may have been improperly rejected by local elections officials. With the candidates separated by such a narrow margin, the dispute over those absentee ballots posed a potentially deciding factor.
In a dissenting opinion, Justice Alan Page criticized the order for requiring the candidates to agree on which absentee ballots were improperly rejected.
He said the usurps the authority of county canvassing boards to make that decision on their own.
It was not immediately clear how the Coleman campaign would respond to the ruling. It has the option of appealing to the U.S. Supreme Court, but one expert on constitutional law and elections said such a move would likely fail.
"They're asking that the Canvassing Board not take into account what I think everybody generally agrees are legal votes," said Guy-Uriel E. Charles, a visiting professor at Duke Law School. "The question is, if they are legal votes, why shouldn't they be counted? That presents a difficulty for the Coleman camp."
The Franken campaign wanted the state Canvassing Board, which is reviewing ambiguous ballots to determine voter intent, to count the improperly rejected absentee ballots as well.
The Coleman campaign opposed having the board count any of those ballots, saying it is not the proper body to settle that issue. Instead, it wants those ballots set aside and preserved in the event either campaign goes to court after the recount to get a judge to include them in the tally.
In objecting to the counting, the Coleman campaign argued that the state Canvassing Board violated the equal protection clause of the U.S. Constitution by not setting uniform procedures for counties to identify and count improperly rejected ballots.
But Charles said he doubts that argument would sway the U.S. Supreme Court.
"The equal protection issue goes against them. ... Their best argument is that some counties are going to count them and others aren't ... But the proper response to that argument is an order telling all the counties to count all legal votes."
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