Brad Friedman: 'The Ballot Universe'

To quote myself from coverage earlier this week, in case you hadn't read it all the way to the end: "Had Democrats ever fought as hard for every single vote as Republicans always do in any election that even approximates being close, President Gore or President Kerry would likely have ensured a very different judicial balance on [the U.S. Supreme Court] by now."

Thanks to the tremendous work by TheUptake.org, I've been hypnotized for hours at a time this week by live video coverage from the Coleman/Franken U.S. Senate election contest in MN, via their live feed from the courtroom, attorney pressers and "post game" analysis each day. Their coverage, as citizen journalists, has been exceptional each day, and MN, as well as the nation, owes them a big thanks. The work of the TheUptake.org is the very prototype of "what's to come" in news coverage as we move forward into the brave new century.

[Disclosure: VelvetRevolution.us, an organization co-founded by The BRAD BLOG, has contributed in the past to TheUptake.org. Also: TheUptake.org needs funding to continue what they're doing! Please help them here if you can!]

Watching their coverage, and the various findings from the 3-judge panel in St. Paul this week, has both made my brain hurt, and made clear again what I've quoted myself noting above: Republicans will say anything, do anything, make any legal arguments --- no matter how much in wild contradiction with their very own previous statements and positions --- that they need, in order to fight for every vote they think they earned (and even many they know they didn't. In the bargain, nobody has called them cry-baby, tin-foil hat wearing sore losers or conspiracy theorists, and their strategy has already resulted in political gains (Al Franken, the apparent winner of the election by 225 votes, has not been able to offer his Democratic vote in the U.S. Senate while the trial continues), and could, if miracles and/or SCOTUS happens, result in an overturned election. Though that much remains very much a long shot.

While many of the GOP tactics here have been reprehensible, their strategy, of fighting for every single vote, is to be commended. The Democrats should --- but probably won't --- learn from it.

With all of that in mind, and in hopes again of not going too far into weeds, which is tough not to do (see our recent previous coverage, here, here and here, for example), what follows is my best stab at a very quick summary of the most notable events and rulings, etc. out of Minnesota this week.

Also, my audio interview with TheUptake's Senior Political Correspondent, Noah Kunin, from Minneapolis, as taped during my weekly Friday appearance on last night's Peter B. Collins Show, is also posted below...

• The contracting and expanding "ballot universe": At mid-week, the 3-judge panel ruled [PDF] that evidence may be examined for the possible counting of some 4,797 ballots which Coleman would like counted. That, down from the 11,000 or so that he'd hoped for originally. Both sides claimed "victory" from the decision and, as so far only Coleman's team has presented their case, Franken's will also get a shot at expand the "ballot universe" with nearly 800 ballots that they would also like included as candidates for possible counting.

FiveThirtyEight.com's Nate Silver, however, believes the absentee ballots are unlikely to save Coleman, because even if all of his ballots were allowed to be counted (a very big "if", since Coleman still has to make the case in court that they should be), it would be very difficult for him to gain the 226 net votes he'd need to overcome Franken's certified lead.

Not only that, but TheUptake's Noah Kunin did his own study of ballots in that universe, and concludes, based on the known voting patterns in the race, a count of all of those ballots would likely result in an 85 net vote gain for Franken!. And that universe doesn't even yet include the ballots that Franken wants added in!

(See the end of this article, for our interview with Kunin.)

• Franken goes to the MN Supremes: Franken's attorneys were in the MN Supreme Court on Thursday, seeking a "provisional" certificate so that he could be "temporarily" seated. The basis of their argument is that federal law, or, rather, the U.S. Constitution in this case, trumps the state law which disallows final certification of the election until all contests --- and subsequent appeals, as the Coleman team was quick to add --- are settled back in the state. Franken argued that the Constitution requires 2 U.S. Senators to be seated, and that MN can't simply "opt out" of the Constitution.

Here's the UpTake's video coverage of the arguments and questioning. And here's TPM's reportage thereof.

My take: Based on his legal arguments, and the questioning from the justices, I'd be shocked if the MN Supremes gave Al what he came a lookin' for. No word yet on when the decision will come down.

• Speaking of Franken: We heard from him on Thursday --- for the first time since the state canvassing board certified results showing he had received 225 more votes than Coleman --- in an op-ed offering kudos to MN's process (appropriately), referring to himself as "Senator-elect" and hinting that, um, he would like to be seated now.

[Ed Note: The Post-Bulletin's site seems to be having trouble, as of now. Hopefully the Franken op-ed is available by the time you read this.]

• Ballots Found!: 3 ballots, not counted in the post-election hand-count, were found in Anoka County (all for Norm Coleman), which explains why 3 votes were otherwise mising previously, as compared to the Election Night totals there. And late on Friday afternoon, the Coleman camp --- via an announcement from shameless FL-2000 Bush v. Gore's Coleman shill, Ben Ginsberg --- claimed that 2, never counted, unopened ballots were "found" in one of the counties.

Quips TPM's Eric Kleefeld in response: "This election gives you an idea of what it would be like if lawyers conducted autopsies, instead of doctors. They could just keep on arguing long enough for decomposition to set in, anyway."

• Coleman Shooting Self In Head Over '3-A' Ballots?: There's a category of ballots which has become known as "3-A" because they were in the third, out of five piles, created when the counties were asked to re-examine all rejected absentee ballots to make sure they met one of the four legal reasons to reject such ballots (the fifth pile contained all that didn't meet one of the four criteria, so were inappropriately rejected). The third pile was for absentee ballots for which there was no corresponding registration form, since MN allows same day registration both at the polls, and via absentee.

However, it's become known that some of the absentee voters may have improperly placed their registration form inside the secrecy envelope for ballot itself, but there's no way to know for sure without likely exposing the secret ballot. For the rest, I'll let Kleefeld do the heavy lifting, but it seems that even if those ballots are added to the "universe", as Coleman would like, the results may not even end up favoring Coleman.

• Coleman: Count the Felon's Vote!: By way of demonstrating just how hypocritical some of Coleman's arguments have been (including arguments to include many ballots that they'd previously argued to reject during the post-election hand-count phase), there was one rejected absentee ballot, that Coleman would now like counted, which came from a guy in jail. He was sent a ballot for the county he was serving time in, instead of his actual county of residence, so the ballot was rejected. And in either case, convicted felons aren't allowed to vote in MN. But Coleman wants it counted. Notes Kleefeld: "just imagine the media outcry that would have occurred if a Democrat were waging an election lawsuit and tried to get this one counted."

• How much longer will this go on?: Yes, it's possible that Norm Coleman could the head Election Official from every single one of MN's 87 counties. He could also argue to call as a witness, every one of the 4,797 voters whose rejected absentees are now in the universe. I'd like to think the court won't allow that, but, rather, will come up with some way soon to limit these proceedings a bit.

But, the Star-Tribune looked at the question, and concluded: "Although no one can say for sure how long the trial will run, the evidence so far --- circumstantial though it is --- suggests that lawn mowers may replace snow shovels by the time it's over."

• Interview with TheUptake's Kunin:: As mentioned, citizen journalist, TheUptake's Senior Political Correspondent Noah Kunin, whose been doing a bang-up job of covering the case from the courtroom every day, joined us on the PBC Show last night to discuss all of the above, the provenance of the The UpTake, as well as his own experience having learned this week that he too was one of the rejected absentee voters!

I've cut down the hour to just my own discusion with PBC about the latest goings on in MN, along with Kunin who joins us thereafter. You can download the MP3 here, or listen online below (appx 30 mins, and thanks to Green960 for the original commercial-free archive!)...

ENDS

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