So Franken has a 225 vote lead, and it appears that Norm Coleman is going to has filed an election contest. Frankly, I think it's still possible he won't, but more on that in a bit.
An election contest is a statutory procedure where "[a]ny eligible voter, including a candidate" can contest the determination of who got the most votes. A contest is heard by a three-judge panel in Ramsey County. The three judges will be appointed by Chief Justice Manguson.
In a contest, either party can request an inspection (recanvass) of some or all (!) of the ballots. If Norm loses, he will have to pay all costs. The standard of proof in an election contest is a preponderance of the evidence (more likely than not), and the burden is on the contestant (Norm).
There are a few issues we can expect Norm to raise in an election contest:
- Missing Ballots in Minneapolis
- Issue: 133 ballots are missing from a precinct in Minneapolis. The State Canvassing Board accepted the election night returns from that precinct because the ballots could not be recounted. This preserved a net 46 vote advantage for Franken.
- Likelihood of success: Slim. There is evidence that the ballots existed and for whom they were cast (the election night return). Norm would have to prove against that evidence that the ballots didn't exist, or that the election night tape is not evidence of the votes cast on those missing ballots. Good luck with that.
- Best case for Norm: +46
- Likely result: No change.
- Absentee Ballots' Disparate Treatment
- Issue: Norm will argue that county officials used different standards to reject absentee ballots, despite being governed by a statewide statute. Essentially, his argument will be that their application of the law was inconsistent.
- Likelihood of success: Slim, with a better chance of backfiring. Norm claims to have identified 600+ ballots that may have been improperly rejected, though county officials disagree. Unless he abandons that posture, assume he will ask the contest panel to count only these cherry-picked absentee ballots, the contents of which are unknown, but it's safe to assume that Coleman has a good idea who the votes are for.
Franken can respond in a couple of ways, none of them resulting in a good outcome for Coleman. Franken can insist that the court consider all rejected absentee ballots and apply the same standard to all of them. That would eliminate the disparate treatment problem, and eliminate any advantage to cherry-picking. Or he could simply argue that the ballots were rightly rejected and have county officials explain why. That would reduce this pool of allegedly wrongly rejected ballots pretty dramatically—Norm has to prove that it's more likely than not that a given ballot was improperly rejected.
- Best case for Norm: He could walk away with 600+ votes if he a) succeeds in counting the votes he identifies and b) avoids any additional absentees from getting counted.
- Likely result: A wash. Norm's public posture on this is not a sound legal posture. The panel won't be inclined to count ballots cherry-picked by either candidate, especially when the argument is framed as an equal-protection claim. If a consistent standard is applied to all rejected absentee ballots, and more get counted, it's possible Franken could benefit rather than Coleman. This is a pandora's box for Coleman.
- Allegedly Double Counted Ballots
- Misc. Equal Protection Arguments
- Issue: Both parties have been raising the Bush v. Gore bugaboo, though Coleman's attorneys have expressly said that equal protection will play a role in their contest. Neither Coleman nor Franken will quietly allow the contest panel to apply an inconsistent standard to selected ballots, at least unless they get to choose some ballots for inconsistent treatment as well. Mostly, this just leaves rhetorical and legal room to appeal all the way to SCOTUS, should the loser decide he really has had enough of being welcome in the state of Minnesota, yet still desires to be its senator. Appeals would have to run through
the MN Court of Appeals and the MN Supreme Court before being appealed to SCOTUS. And success on appeal to SCOTUS would likely mean a remand for further proceedings, not an outright victory. That way lies madness.
There may be more issues, but Coleman's attorneys have not identified them in public. The way it looks right now, he's going to have to come up with something better in order to prevail. Franken has a right to file an answer and raise his own issues.
Coleman must be aware of all this, and realize his odds of success are poor. Only in his wildest legal fantasies can he overcome his current deficit. So, the question is, will he do this even knowing he's likely to lose? Well, then you have to ask, who's paying his attorneys, and what does he stand to gain or lose by obstructing MN's senator from taking office. I leave these as an exercise for the reader.
Update 1: Haven't had enough? Not ready to cry uncle? WineRev's daily MN Senate Race Diary is up!
Update 2: Norm's definitely going to contest.
Update 3: Norm has filed suit.