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Franken May Be Ceding Ground on Absentee Ballots

In St. Louis County, one of the bluest areas in Minnesota, the Coleman campaign succeeded in blocking more than a third of absentee ballots set aside by the state for potentially being wrongfully rejected from being counted — including one ballot from an elections judge. Per the Star Tribune:

DULUTH – Shirley Graham was astonished to learn that a lawyer from Norm Coleman’s campaign on Tuesday blocked her absentee ballot from being added to the U.S. Senate recount.

“I’m an election judge,” said Graham, of Duluth. “I expected to be the last person whose ballot wouldn’t be counted.”

Her sealed ballot was among 60 from St. Louis County that were blocked by representatives of Coleman and Al Franken during the first day of a statewide review of absentee ballots that may have been wrongly rejected in last month’s election. Under a state Supreme Court ruling, local election officials and the two campaigns must all agree that a ballot was wrongly rejected for it to be sent along to St. Paul for inclusion in the recount.

Coleman’s camp, which rejected 59 of the 60 ballots set aside Tuesday in St. Louis County, objected to Graham’s ballot on the grounds that the date next to her signature did not match the date next to the signature of her witness, Jack Armstrong.

There are a couple of things in the preceding paragraphs that the Franken campaign ought to be worried about. Firstly, quite a high percentage of absentee ballots were rejected — 60 out of what had been reported yesterday to be 161 ballots under consideration in St. Louis County, or 37 percent. All but one of those objections were made by the Coleman campaign. Secondly, the Coleman campaign is getting away with blocking ballots for asinine reasons. In the case cited above, for instance, the ballot was rejected because the date provided by the voucher did not match the date the date provided by the voter. Not only is there no requirement that the dates of the signatures match — there is no requirement that the signatures are dated, period (see the applicable statutes for yourself here and here).

Now, it’s not clear that the Franken campaign can do much about the Coleman campaign blocking any one individual ballot, since the process that the Minnesota Supreme Court set up essentially gives either campaign a unilateral veto on any ballot they do not want counted. The risk to Franken is that the Coleman folks will be applying one standard in St. Louis County, where the average absentee ballot would probably help Franken, but another (more liberal) one in Dakota County, where Coleman won the plurality of votes. If Coleman is blocking 37 percent of the ballots in blue counties and not blocking any at all in red counties, then it is far from clear that Franken will succeed in gaining ground from the absentee ballot phase and in fact the opposite might turn out be true.

The Franken could take one obvious counter-measure: move to reject a high percentage of absentees in red counties. Perhaps they have been doing that; reporting has pretty sporadic between all the different counties where this process is taking place, so we really don’t know.

For the time being, however, they seem inclined to play it cool and maintain the moral highground, perhaps believing that they’ll have a strong argument on Equal Protection grounds if they need to contest the election later on.

From my vantage point, Franken could possibly have played his hand more strongly on Monday, once it became clear that the Coleman campaign was making no pretense whatsoever of attempting to establish an objective, statewide standard for the counting of absentees, essentially just cherry-picking ballots and daring the Franken campaign to call them on it. The result of that process was that no statewide standards were agreed upon, enabling either campaign to apply different standards across different counties.

The upshot of all of this is that Franken probably now has grounds to contest the election if at any point he falls behind, either after the vote is certified or, as is somewhat more likely, following a successful Coleman challenge on the question of duplicate ballots.

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