The Wall Street Journal is bar none one of the best newspapers in the country — except when its Editorial Board is having a bad day. And today the Board is having a very bad day, having published an editorial that declares Al Franken’s provisional win in Minnesota, which the state just certified moments ago, to be illegitimate, while accusing Minnesota’s Canvassing Board of being inconsistent and biased in favor of Franken.
There is nothing intrinsically wrong with taking such a position. The Journal’s editorial, however, has several basic facts wrong, makes several other assertions based on flimsy or nonexistent evidence, and generally has little understanding of the process that has taken place to date.
Let’s go through the editorial paragraph by paragraph.
Strange things keep happening in Minnesota, where the disputed recount in the Senate race between Norm Coleman and Al Franken may be nearing a dubious outcome. Thanks to the machinations of Democratic Secretary of State Mark Ritchie and a meek state Canvassing Board, Mr. Franken may emerge as an illegitimate victory
“Machinations”: there’s a ten-dollar word. Ritchie may be a Democrat, but he was also democratically elected — lower case ‘D’ — by the people of Minnesota. And as for the Canvassing Board, it arguably leans to the right, consisting of two members appointed by Tim Pawlenty, one appointed by Jesse Ventura, one elected member, and Ritchie.
Mr. Franken started the recount 215 votes behind Senator Coleman, but he now claims a 225-vote lead and suddenly the man who was insisting on “counting every vote” wants to shut the process down. He’s getting help from Mr. Ritchie and his four fellow Canvassing Board members, who have delivered inconsistent rulings and are ignoring glaring problems with the tallies.
Actually, Coleman is having far more trouble with the Minnesota Supreme Court, which generally has a conservative reputation, than he is with the Canvassing Board. They’re the ones who rejected his petition on duplicate ballots, and they’re the ones who rejected his notion of wanting to tack on additional ballots to the absentee ballot counting.
Under Minnesota law, election officials are required to make a duplicate ballot if the original is damaged during Election Night counting. Officials are supposed to mark these as “duplicate” and segregate the original ballots. But it appears some officials may have failed to mark ballots as duplicates, which are now being counted in addition to the originals. This helps explain why more than 25 precincts now have more ballots than voters who signed in to vote. By some estimates this double counting has yielded Mr. Franken an additional 80 to 100 votes.
There are 25 precincts with more ballots than voters? I’m not sure this is actually true. There were certain precincts with more votes counted during the recount than there were on Election Night — which is not surprising, considering that the whole purpose of a hand recount is to find votes that the machine scanners missed the first time around. I have not seen any evidence, on the other hand, that there are precincts with more votes than voters as recorded on sign-in sheets. And the Coleman campaign evidently hasn’t either, or it presumably would have presented it to the Court, which rejected its petition for lack of evidence.
Also, note the weasel-wordy phrase “by some estimates”, which translates as “by the Coleman campaign’s estimate”. There is no intrinsic reason why Franken ballots are more likely to be duplicated than Coleman ballots, especially when one significant source of duplicate ballots is military absentees, a group that presumably favors the Republicans. Coleman, indeed, only became interested in the issue of duplicates once he fell behind in the recount and needed some way to extend his clock. Before then, his lead attorney had sent an e-mail to Franken which said that challenges on the issue of duplicate ballots were “groundless and frivolous”.
This disenfranchises Minnesotans whose vote counted only once. And one Canvassing Board member, State Supreme Court Justice G. Barry Anderson, has acknowledged that “very likely there was a double counting.” Yet the board insists that it lacks the authority to question local officials and it is merely adding the inflated numbers to the totals.
The Canvassing Board indeed determined that it lacked the jurisidiction to handle duplicate ballots, telling Coleman that he had to go to court. Which he did. And the court threw the case out because Coleman didn’t have any evidence.
In other cases, the board has been flagrantly inconsistent. Last month, Mr. Franken’s campaign charged that one Hennepin County (Minneapolis) precinct had “lost” 133 votes, since the hand recount showed fewer ballots than machine votes recorded on Election Night. Though there is no proof to this missing vote charge — officials may have accidentally run the ballots through the machine twice on Election Night — the Canvassing Board chose to go with the Election Night total, rather than the actual number of ballots in the recount. That decision gave Mr. Franken a gain of 46 votes.
Actually, there is some proof: the number of votes identified during the recount fell 134 short of the number of voters who signed in on Election Night in this precinct.
Meanwhile, a Ramsey County precinct ended up with 177 more ballots than there were recorded votes on Election Night. In that case, the board decided to go with the extra ballots, rather than the Election Night total, even though the county is now showing more ballots than voters in the precinct. This gave Mr. Franken a net gain of 37 votes, which means he’s benefited both ways from the board’s inconsistency.
The decisions are not inconsistent if the Canvassing Board’s objective is wanting to count every vote.
And here again the Journal is going on about the county “showing more ballots than voters in the precinct”. If there is evidence of this, it would be news not just to me but also to the Coleman campaign.
And then there are the absentee ballots. The Franken campaign initially howled that some absentee votes had been erroneously rejected by local officials. Counties were supposed to review their absentees and create a list of those they believed were mistakenly rejected. Many Franken-leaning counties did so, submitting 1,350 ballots to include in the results. But many Coleman-leaning counties have yet to complete a re-examination. Despite this lack of uniformity, and though the state Supreme Court has yet to rule on a Coleman request to standardize this absentee review, Mr. Ritchie’s office nonetheless plowed through the incomplete pile of 1,350 absentees this weekend, padding Mr. Franken’s edge by a further 176 votes.
This is just blatantly false. All counties, red and blue alike, were instructed by the Supreme Court to identify any wrongly-rejected absentee ballots, and all of them did. In certain counties, Coleman claims to have identified additional wrongly-rejected absentee ballots above and beyond the ones that county officials identified — but these were counties that nevertheless complied with the court’s order and turned in their lists of ballots to the state.
Both campaigns have also suggested that Mr. Ritchie’s office made mistakes in tabulating votes that had been challenged by either of the campaigns. And the Canvassing Board appears to have applied inconsistent standards in how it decided some of these challenged votes — in ways that, again on net, have favored Mr. Franken.
I watched the video feed of the challenge adjudication process and did think there were some number of inconsistencies, particularly in the ways that ballots with ‘X’s on them were handled. But, I was looking at .pdfs of the ballots, whereas the Canvassing Board got to look at full-color, three-dimensional copies, which may make some difference in borderline cases. More to the point, however: (1) both candidates had their lawyers in the room when this adjudication was taking place, and had every right to press the Board on perceived inconsistencies, and (2) there is no evidence whatsoever that these inconsistencies hurt any one candidate particularly more than the other.
The question is how the board can certify a fair and accurate election result given these multiple recount problems. Yet that is precisely what the five members seem prepared to do when they meet today. Some members seem to have concluded that because one of the candidates will challenge the result in any event, why not get on with it and leave it to the courts? Mr. Coleman will certainly have grounds to contest the result in court, but he’ll be at a disadvantage given that courts are understandably reluctant to overrule a certified outcome.
He’ll be at a disadvantage because fewer people voted for him.
Meanwhile, Minnesota’s other Senator, Amy Klobuchar, is already saying her fellow Democrats should seat Mr. Franken when the 111th Congress begins this week if the Canvassing Board certifies him as the winner. This contradicts Minnesota law, which says the state cannot award a certificate of election if one party contests the results. Ms. Klobuchar is trying to create the public perception of a fait accompli, all the better to make Mr. Coleman look like a sore loser and build pressure on him to drop his legal challenge despite the funny recount business.
But it doesn’t contradict Congressional precedent, as the Congress generally has seated provisional winners while challenges were taking place, including Republican Representative Vern Buchanan in 2007 and Democratic Senator Mary Landrieu in 1997.
Minnesotans like to think that their state isn’t like New Jersey or Louisiana, and typically it isn’t. But we can’t recall a similar recount involving optical scanning machines that has changed so many votes, and in which nearly every crucial decision worked to the advantage of the same candidate. The Coleman campaign clearly misjudged the politics here, and the apparent willingness of a partisan like Mr. Ritchie to help his preferred candidate, Mr. Franken. If the Canvassing Board certifies Mr. Franken as the winner based on the current count, it will be anointing a tainted and undeserving Senator.
New Jerseyites! Louisianans! Cancel your subscriptions! And the rest of you might as well too.