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Minnesota Canvassing Board Punts on Rejected Absentee Ballots

Minnesota’s Canvassing Board today unanimously rejected a request by the Al Franken campaign to mandate that absentee ballots initially rejected as invalid be reconsidered, essentially declaring that it does not have jurisdiction to do so. However, the Franken campaign has at least two mechanisms by which those votes may in fact be counted.

The first is that the Canvassing Board will reconvene next week to consider a proposal to have county officials sort through their absentee ballots to determine which absentee ballots appeared to have no valid reason for rejection — a so-called “fifth pile” of ballots, as there are four valid criteria in Minnesota for rejecting absentees. The Canvassing Board could then rule that ballots in the fifth pile be counted. The Franken campaign seems inclined to let this process play out for now; in the meantime, at least one county (Itasca) appears as though it may re-evaluate the rejected absentee ballots on its own, without awaiting instructions from the state.

The second mechanism would be to do the good, old-fashioned American thing and sue. It is quite likely that the Franken campaign will sue if the Canvassing Board does not mandate that the “fifth pile” ballots be counted; the reporters at The Uptake think such a lawsuit would have a fair chance of prevailing.

The St. Paul Pioneer press reports that about 12,000 absentee ballots were rejected statewide. Undoubtedly, the vast majority of these were rejected for valid reasons, but reviews of such ballots in counties like Ramsey (St. Paul) have revealed that material numbers were rejected due to human error, and Minnesota’s Secretary of State, Mark Ritchie, has estimated that between 500 and 1,000 absentees were rejected improperly.

The behavior of both the Coleman and Franken campaigns would suggest that Franken stands to gain if these absentee ballots are reconsidered, but the extent of the potential gain is hard to determine. In late October, a Public Policy Polling survey showed Al Franken with an 8-point lead over Norm Coleman among persons who had already voted, although that survey slightly overestimated Franken’s support overall. Most likely, Franken would stand to add a vote for somewhere between 1 in every 10 improperly rejected absentee ballots, and 1 in every 20. Given this range and the estimate of improperly rejected absentees provided by Ritchie, that would suggest that Franken campaign stands to gain a net of somewhere between 25 and 100 votes if these ballots are in fact counted by the state.

As of early yesterday, the Franken campaign told reporters that it was within 84 votes of Coleman on the assumption that all ballot challenges are rejected, a different assumption than the Secretary of State makes in providing its accounting of the state of the recount. This estimate roughly squares with attempts I have been making to infer the frequencies of different types of challenges on behalf of each campaign, and their concomitant impact on the state’s reported totals.

If the Franken campaign’s estimate is correct, that would put them on pace to be within 40-50 ballots of Coleman should all ballot challenges be rejected. The Franken campaign could then prevail in the recount in one of two ways. Firstly, a higher fraction of their challenges could be accepted. This is not entirely unlikely, especially if a higher proportion of the Coleman campaign’s challenges fall into ‘Type 1’, which are challenges of ballots deemed legal by the local elections judge — my inference is that ‘Type 1’ challenges are especially unlikely to be accepted. The second way is if the rejected absentee ballots are re-considered.

Franken attorney Marc Elias also suggested at his press conference today that the Franken campaign will be reviewing its challenges, and might unilaterally withdraw challenges that it considers to be frivolous before the Canvassing Board meets in December. If this were to happen, Coleman would gain a lot of ground in the state’s running tally — but Franken, arguably, would re-gain the moral highground. The Coleman campaign, for its part, has suggested to Franken’s attorneys that it might be willing to consider a bi-lateral process for withdrawing certain challenged ballots.

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