…is that the Minnesota Supreme Court’s order (.pdf) today didn’t make any judgment whatsoever about the merits of Coleman’s case on absentee ballots. It merely said that the time to resolve these things is during an election contest, not during the recount itself. And since there’s an election contest coming, Coleman’s argument will get, quite literally, its day in court.
Coleman’s problem, however, is not so much that his argument is legally unsound but that it’s not especially likely to benefit him even if the Court rules in his favor. The Court had previously asked the counties to double-check their absentee ballots and identify any that might have been rejected in error; the counties did that, and came up with a collective 1,300 or so. The process the Court set up required both campaigns to agree on a ballot before it was counted, and about 400 ballots were vetoed by one or the other campaign. The other 900 were forwarded to the Canvassing Board and were counted on Saturday.
My guess is that the 400 vetoed ballots have a pretty strong chance of being counted at some point. (Will they benefit Coleman? Given that the absentees that were counted went strongly for Franken, the odds are probably not.) But this is not the subject of Coleman’s claim — instead, he’s stating that there are some 650 additional erroneously rejected ballots that the counties missed during their sweep of absentees.
What Coleman wants the Court to do, in other words, is to order that the counties re-re-examine their absentee ballots. What might happen if that takes place?
First of all, I doubt that very many of the ballots on Coleman’s list of 650 are going to be found to have been rejected improperly. Remember, the counties have already sorted through their absentees at least twice — once on Election Night, and then a second time in accordance with the court order. Some counties, in fact, have even gone through their absentees a third time in accordance with the wishes of the Coleman campaign, and where they have, such as in Ramsey and Pipestone counties, the counties found that all the ballots on the Coleman list had been rejected properly. The process is somewhat analogous to vacuuming your floor; you aren’t going to gobble up nearly as much dust on your second sweep through the living room as you did the first time around, even if you’d done a haphazard job. So this is problem #1 for Coleman. His list of 650 ballots is going to be significantly pared down, and will probably wind up closer to 65 than 650.
Secondly, those absentee ballots are sealed, so we don’t know how many of them will turn out to be votes for Coleman. Presumably, the Coleman campaign thinks that the ballots are more likely than not to favor him, or he would not have included them on his list. But “more likely than not” might mean 50% Coleman ballots, 35% Franken ballots, and 15% other. If all 650 ballots were counted with those percentages, Coleman wouldn’t get more than a 98-ballot net gain, less than half of his present deficit with Franken.
And thirdly, precisely because the ballots on Coleman’s list are likely to favor Coleman, that also means there is some undetermined number of ballots that were also rejected in error but which are likely to favor Franken. Let’s say that the Coleman campaign is sorting through a spreadsheet of rejected absentee ballots, and identifies one from Stanley Terwilliger of Eden Prarie, Minnesota, who has voted Democratic in every election since 1964, contributed $2,300 to the Franken campaign, and once got in an ice hockey brawl with Norm Coleman’s twin brother Lars. Is that ballot going to make Coleman’s list? Uh, probably not. But if the Court ordered a comprehensive re-recounting of the absentee ballots, it probably would get swept in — and would turn out to be a Franken ballot.
Let’s be frank: Norm Coleman doesn’t have much of a future in electoral politics. Defeated Presidential candidates sometimes have nine lives, but defeated Senatorial candidates rarely do, and in his career running for statewide office, Coleman has lost to a professional wrestler, beaten a dead guy, and then tied a comedian. He doesn’t have much to lose by fighting this to its bitter conclusion. But it’s hard to envision how he’ll come up with enough ballots to overtake Franken.