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Coleman Sues on Duplicate Ballot Claim, Seeking to Prevent Certification of Recount

The Coleman campaign is back to court, this time filing a petition with the Minnesota Supreme Court that seeks to prevent Minnesota’s Canvassing Board from certifying the results of its recount until an issue with what it claims to be duplicate ballots is resolved. In addition, Coleman requests that the court mandate that the individual precincts double-check for potential duplicate ballots in conjunction with their court-ordered review of rejected absentee ballots, which is set to proceed between now and December 31.

Duplicate ballots are created under the ordinary circumstances of an election when an original ballot cannot be read properly by machine scanners. This may be because the ballot is damaged in some fashion. Alternatively, some overseas ballots are sent by e-mail to the participants, printed out on regular paper, and then mailed to the state. A duplicate version of these ballots must be created because the machine scanners cannot read ballots on regular paper, requiring the thicker stock that ballots are printed on.

In creating duplicate ballots, the precincts are supposed to carefully match the duplicate ballots with the originals to ensure that such ballots are not counted twice (or, alternatively, not counted at all). In some cases, however, the duplicates and the originals have become decoupled from one another, and the Coleman campaign claims these ballots have been counted twice.

There is no particular reason to believe that this type of ballot particularly ought to favor either Coleman or Franken, as such ballots arise because of errors made by elections officials, rather than by voters. In addition, one significant source of duplicate ballots is overseas military personnel, who will often print out their ballot by e-mail and sent it to Minnesota on regular paper; military personnel generally vote Republican.

However, the Coleman campaign has been much more aggressive in identifying and challenging potential duplicate ballots, submitting approximately 200 such ballots to the Canvassing Board. The Canvassing Board ruled this morning that it does not have the jurisdiction to deal with the propriety of the duplicate ballots, instead telling Coleman he needed to go to court.

In a discussion before the Canvassing Board yesterday evening, Franken attorney Marc Elias claimed, among other things, that his campaign had specifically been prevented from challenging potential duplicate ballots in certain counties. Elias also produced an e-mail from Coleman lead attorney Tony Trimble, which admonished the Franken campaign for attempting to have such ballots challanged.

Coleman’s petition is unfocused and haphazard, oftentimes citing precedents from other states and arguing that they should apply to Minnesota. It may be motivated in part by the Coleman’s campaign wanting to avoid a circumstance in which the Canvassing Board certifies a recount total showing Franken ahead, would be damaging to Coleman from a public relations standpoint.

There are, however, undoubtedly some legitimate instances of double-counted ballots, and it would not surprise me if the Court seeks a mechanism to address them. But, it is not clear that such a review would benefit Coleman if a truly comprehensive review is made. That Coleman has been more aggressive in challenging such ballots does not mean that the circumstances in which they arise are intrinsically more likely to help Coleman.

Nate Silver founded and was the editor in chief of FiveThirtyEight.