Wherein we all guess what the hell Coleman's ultimate endgame may be, even as he makes it up while going along...
By Brad Friedman on 2/3/2009, 12:36am PT  

Remember back in 2000 when the Republicanists belittled elderly (and minority) voters, claiming that 'if they failed to fill out their ballots correctly, and failed to follow the simple voting rules, then they're idiots and their votes shouldn't be counted'? They made the case over and over again, cynically, of course, because it would mean that, even though more voters had intended to vote for Al Gore than George W. Bush (and actually did [PDF], had they bothered to count them all) Bush should still be allowed to "win" the Presidency.

Well, as we've had to say so many times during our previous coverage of the GOP flip-floppery that is the election contest of former Senator Norm Coleman against Al Franken in MN: that was then and this is now.

At right, take a look at the short, approximately 1-minute video of Coleman (and FL 2000 Bush v. Gore) attorney Ben Ginsberg, trying to keep a straight face in a presser after his team argued today that yet another cherry-picked voter/witness whose absentee ballot was legitimately rejected --- in this case because she failed to sign the ballot --- should have her vote counted anyway.

(Video courtesy of TheUptake.org. Disclosure: VelvetRevolution.us, co-founded by The BRAD BLOG, is a financial contributor to TheUptake.)

Like we said, that was then and this now. So never mind that whole "voter fraud" argument. Not useful today for the GOP opportunists. And now, while I'll try to stay out of the deep weeds tonight on today's proceedings at the Coleman/Franken circus (you're welcome), Nate Silver at FiveThirtyEight.com argues convincingly --- based on fairly reliable reads of usually-predictable WSJ and other Wingnut Tea Leaves --- that Team Coleman may ultimately be angling for a do-over. That is, a re-vote for the entire election.

He may be right. Though there may be another plan, even though admittedly, the Coleman campaign is largely making all of this up as they go along, and any or all of the following guesswork may end up being their "strategy"...

"Norm Coleman's goal might not be to pull ahead of Al Franken outright," via the election contest, Silver suggests, "but rather to create enough confusion and uncertainty around the outcome of the recount that the Senate calls for a re-vote in Minnesota, as it did in the New Hampshire Senate Race of 1974."

Given a few more carefully placed articles that Silver noticed, "suggests that these are the preferred talking points of the Coleman campaign --- talking points which evidently involve planting the seed of a re-vote in the public's head." (Cue Hannity for tomorrow, especially since Rush is on vacation this week.)

The strategy seems like a very long shot to me, but so was it when Ginsberg and friends went to SCOTUS in 2000 to ask their friends to keep everybody from counting anybody's vote in FL, on the basis that counting any of them, would somehow disenfranchise all of them. Or some absurd nonsense that we all sat around and allowed to pass for "democracy" way back when.

The shameless WSJ whackos (Hi, John Fund!) will undoubtedly make whatever case they need in order to support their GOP buddies ambitions, democracy and Constitution-be-damned. But, as the ultimate decision to declare the seat "vacant" --- and thus, force a new special election --- would belong to a Democratic majority in the U.S. Senate, a better chance for Coleman may lie in the federal issues being raised, "over and over," by his legal team, as AP notes, based on the U.S. Constitution's equal protection clause.

Even though there were strict standards across the entire state of MN, to determine which absentee ballots should and shouldn't be counted (unlike FL 2000), Coleman has been building a case to suggest the application of those standards wasn't applied equally everywhere. Therefore, they are maintaining, all rejected absentee ballots should now be counted. Or at least the 11,000 or so that Coleman would like to see added to the total, many of which he had previously argued against counting back during the hand-count when he thought he was winning.

The equal protection argument, as weak and as backwards as it is now being applied in MN versus the way the Republicanists made their case in FL, may at least find favor among the still reliably GOP-leaning justices of the SCOTUS.

On the other hand, lending Silver's thesis a well-deserved benefit of the doubt here, the same Wingnut Tea Leaves, as reported via AP over the weekend, don't necessarily (yet) support my contention of a SCOTUS scheme. Though that may just be because talking points haven't yet been well enough circulated.

Jan Baran, a D.C. election attorney and former general counsel for the RNC told AP she believes the SCOTUS route is "a long shot," then hastened to add: "But it worked for Bush v. Gore."

Partisan UCLA law professor, Daniel Lowenstein, a member of the McCain campaign's so-called "Honest Election Committee," also pooh-poohed the federal challenge, telling AP that he thinks this contest is "a state law question."

Moreover, TPM's Eric Kleefeld, who has been reporting from the courtroom, has a theory which supports Silver's, in a sense. "The Coleman team appears to be laying out a continued strategy of casting doubt on the legitimacy of the Minnesota election result by pointing to a fundamental underlying idea of this dispute: The margin of error is simply too big in a race this close."

If Kleefeld is right, and Coleman makes the case that we simply can't rely on the numbers because it's just "too close to call", the strategy would certainly lend credence to Silver's "create enough confusion and uncertainty around the outcome of the recount" suggestion, to then try and force a do-over.

But, as I promised to stay out of the weeds tonight (sorry, I may have failed) just two more quick points for now:

1) Franken's team seems to be doing a nice job of rebutting the cases of those friendly, cherry-picked witnesses being called by Coleman to testify that their votes should be counted, even though, as we noted last week, several of them clearly were legitimately rejected, and one even admitted to fraud and forgery on the stand. See Kleefeld today here and here for more on Franken's effective rebuttals today.

2) 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 that SCOTUS by now.

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Article Categories: Election Irregularities, Election 2000, Election 2008, Minnesota, U.S. Supreme Court, Vote-by-Mail, Al Franken