Late Friday ruling limits 'Ballot Universe' of those still under consideration for counting, to only those 'legally cast under relevant law'
Franken team pleased that at least 13 of 19 categories of previously rejected absentee ballots will not be counted...
By Brad Friedman on 2/13/2009, 3:56pm PT  

[Updated several times at bottom of article.]

A late Friday finding from the 3-judge panel presiding over the Coleman/Franken U.S. Senate election contest in Minnesota has limited the number of previously rejected absentee ballots that may be reviewed for possible counting.

The 17-page order [PDF], issued late today, will likely come as a blow to former Senator Norm Coleman's (R) chances of overtaking presumptive Senator-elect Al Franken's (D) current lead of some 250 votes out of approximately 2.9 million ballots cast last November...

Earlier this week, the judges ordered both sides to present arguments on whether 19 different categories of rejected absentee ballots should, or shouldn't, be considered for counting in the trial. Previously, the court had narrowed the "ballot universe" --- those ballots to be considered for possible counting --- to some 4,800 ballots submitted by the Coleman team, and about 800 from Franken's team.

Most of the ballots were previously rejected for counting on both Election Night, and again during the post-election hand-count, for various reasons, most notably because voters failed to follow certain requirements, such as signing their ballots or submitting proper registration forms along with them.

"The sole question presented to this Court in this election contest," the ruling reads, is "which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to received the certificate of election."

"Thus, by excluding ballots in categories that are not legally cast under relevant law, the Court can narrow the scope and focus of this contest." And, with that, the judges proceeded to rule out a number of categories of ballots that were "not legally cast under relevant law and shall not be ordered opened and counted."

Ballots that the court ruled will not be ordered to be counted:

  • "An Absentee Ballot Submitted by a Voter in an Absentee Ballot Return Envelope on which the Voter's Address Differs from the Address Provided in the Absentee Ballot Application"
  • "An Absentee Ballot Submitted by a Voter Whose Absentee Ballot Application Does Not Contain the Voter's Signature"
  • "An Absentee Ballot Submitted in an Absentee Ballot Return Envelope That is Not Signed by the Voter"
  • "Absentee Ballots Witnessed by a Notary Public Without Affixing a Stamp or Seal"
  • "Absentee Ballots Submitted by Voters Who Were Not Registered in the Precinct"
  • "Absentee Ballots Received After the Relevant Statutory Deadlines"

At this moment, we don't yet know how many ballots remain in the "ballot universe" following the ruling, though at a telephonic press conference for reporters held moments ago, Franken attorney Marc Elias contended that some 13 out of 19 categories they'd wanted exclude from counting were, in fact, excluded in the ruling by the court. Another 4 categories they'd wanted excluded may or may not be a part of this ruling.

Though Elias didn't know how many exactly, he said "a huge number" of ballots would now be excluded from the "universe" in current consideration. "There are a total of 17 of the 19 that it appears we've prevailed on, either explicitly or implicitly in the reasoning," he said.

Franken had argued against counting ballots in 17 of the 19 categories, while Coleman's team had wanted all but two categories counted, arguing that many of the rejected ballots should be counted, despite a failure by voters to follow all requirements for casting absentee ballots.

UPDATE 4:50pm PT: TPM's Eric Kleefeld describes the ruling as "very bad news for Norm Coleman," and notes that in addition to the numbers of ballots no longer available for consideration, the ruling strikes down an important argument in Coleman's case to date:

The court also walked back an approach they'd previously been looking at --- that a ballot could be accepted if any non-compliance by the voter could be blamed on an election official failing to instruct or correct them. Instead, they say full compliance is needed for the categories laid out here.

UPDATE 5:30pm PT: Coleman's attorneys tell AP "they believed the ruling left about 3,500 rejected absentee ballots still at play in the trial." Consider the source in that assessment, which may or may not be accurate. But hopefully we'll be able to get a better sense of the numbers over the weekend, after a bit of crunching.

UPDATE 9:10pm PT: Star-Tribune adds this disturbing thought:

But although many ballots have been removed by the ruling, it may also have the effect of lengthening the trial. The order states that Coleman must show that the ballots he wants counted were legally cast, not just that they shouldn't have been rejected. Displaying absentee ballot envelopes with obvious problems won't be enough, the judges wrote.

"There may be fewer ballots to look at, but proving them up may take longer," said Coleman attorney Ben Ginsberg.


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