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Franken to Coleman: Where’s The Beef?

EDIT (8:10 AM): The Uptake, which we’ve recommended to you many times, will have a live streaming feed of the Canvassing Board’s activities today beginning at 9 AM Minnesota time. This is separate and distinct from the Supreme Court’s ruling, which probably wont come until later in the day.

In a 26-page response (.pdf) filed on Monday with the Minnesota Supreme Court, Al Franken’s campaign disputes Norm Coleman’s claim that a significant number of ballots were double-counted in Minnesota, chiding Coleman’s petition for a lack of evidence.

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To briefly review the mechanics of the dispute: under certain circumstances in Minnesota, a duplicate ballot must be created on Election Day. This happens when the ballot cannot be read properly by a machine scanner, either because it is has been damaged in some way or — as in the case of many overseas absentee ballots — it has been printed out on a non-regulation type of paper. When this occurs, both the original ballots and the duplicates are supposed to be labeled carefully; i.e. “Original #1”, “Original #2”, “Original #3”, and “Duplicate #1”, “Duplicate #2”, “Duplicate #3”. The duplicates are then run through the scanners and the originals segregated and preserved for safe-keeping.

In advance of the manual recount, however, the campaigns agreed that rather than counting the duplicate ballots, they would instead count the originals. Why the change of course? The problem with the originals is that they can’t be read by a machine scanner. In the recount, however, all ballots are counted by hand, rendering this problem moot. The original ballots, the campaigns seemed to believe, preserved a purer, more foolproof impression of voter’s intent. Therefore, during the recount, any ballots identified as duplicates were pulled from the pile and not counted, and the originals counted in their place.

The problem is that in some cases — likely involving a couple hundred ballots statewide — there was a discrepancy between the number of originals and the number of duplicates. So, for example, you might have original ballots labeled #1-#4, but only duplicates #1, 2, and 4 were found during the hand recount, with no match for #3. Or, worse still, you might not find any ballots labeled as duplicates at all.

The Coleman campaign’s claim is that where such discrepancies arose, the cause was that the elections worker failed to properly label the duplicate ballots. These duplicates could therefore not have been pulled from the pile, and both the duplicate and the original would wind up being counted. As evidence of this, the Coleman campaign cites a number of instances in which more ballots were counted during the recount than on Election Day.

Franken’s response proposes, in essence, a number of alternative hypothesis for the discrepancies, which would not have implied double-counting. In particular, Franken proposes the following:

1. Duplicate ballots were never created. This would also result in an absence of ballots labeled as duplicates during the hand recount, as well as an increase in the number of ballots counted between Election Day and the recount phase.

2. Duplicate ballots were created on Election Day, counted on Election Day, then set aside. In other words, the duplicate ballots were lost after Election Day. This would also result in an absence of duplicate ballots, although it would not result in an increase in the number of ballots counted over Election Day.

3. Duplicate ballots were created on Election Day, but set aside and never counted. The same as above, except the ballots were never counted in the first place; this permutation would result in an increase in the number of ballots counted versus Election Day.

The Franken campaign claims that each of these possibilities is “equally likely” as the Coleman campaign’s hypothesis that duplicates were created but not labeled. While that seems like a stretch — I can’t imagine that #2 and #3 happened very frequently — #1 is a problem for Coleman, as the Franken campaign has produced affidavits from at least two precincts claiming that the precinct workers forgot to create duplicate ballots.

Franken’s response also cites another problem with the Coleman campaign’s complaint. Namely, it isn’t really dispositive if the number of ballots counted during the recount exceeds the number counted on Election Day. This could result from any of several of the permutations discussed above, as well as a number of other circumstances not related to duplicate ballots, such as a machine scanner having malfunctioned on Election Day.

What would be more powerful evidence, Franken claims, is if the number of votes counted during the recount exceeded the number of voters present on Election Day, as recorded on sign-in sheets and the like. The Coleman campaign, however, has conspicuously presented no evidence of instances where there were more votes than voters.

That’s really the thrust of Franken’s response (which, it must be said, is annoyingly repetitive at times). It’s basically a “Where’s The Beef?” sort of argument.

And it’s one that might persuade the Court. Suppose that you have two hypotheses to explain missing duplicate ballots. If one hypothesis is true, then you’ll have double-counted certain votes. But if the court acts upon that hypothesis, and it turns out to be false, the result will be that you’ll have thrown out certain (legal) votes.

Coleman’s proposed remedy is that original ballots should be thrown out in any instances where they can’t be paired with duplicates. If that remedy is adopted, then each of two things will happen: (#1) The state will prevent some ballots from being double-counted, and (#2) The state will also throw out some perfectly legal ballots. The process of identifying potential double-counted ballots is simply too imprecise to have the one thing without the other.

Can these two harms be weighed against one another? Suppose that if you rule on Coleman’s behalf, you’ll prevent 20 votes from being counted twice, but also throw out 20 legal votes. Most of us would probably not consider that to be a productive trade-off. But what if you could prevent 30 votes from being double-counted, in exchange for throwing out 10 legal ballots? Does the trade-off then become acceptable? Should you double-count 50 ballots if it prevents one voter from having his vote thrown out? Or, does the right of a voter to have his vote counted inherently trump that of the risk of counting some other voter’s ballot twice?

These are the sorts of questions that the Court will have to ask itself. My layman’s opinion is that Coleman will need to present stronger evidence before the Court is willing to run the risk of throwing out legal ballots, particularly as Coleman signed off on the procedures that governed the recount in the first place. But, we will know soon enough, and it’s unlikely that anything the Court rules now would preclude Coleman from contesting the results of the election later.

Nate Silver is the founder and editor in chief of FiveThirtyEight.