This afternoon, Minnesota's Supreme Court will take up Norm Coleman's request (PDF) to stop the counting of so-called "fifth-pile" absentee ballots in Minnesota. These are ballots that initially were rejected by the counties, but that upon further review appear to have been rejected for invalid reasons. Finding some way to preclude these ballots from being counted might represent Coleman's best chance for victory, since the evidence points toward Franken picking up a significant number of votes if and when such ballots are included.
Coleman is making essentially two arguments in his legal brief:
1) That the Canvassing Board does not have the jurisdiction to count such ballots (rather, he claims, authority to do so rather rests solely with the courts), and,
2) That counting such ballots under the recommendation of the Canvassing Board would violate the Equal Protection clause of the Constitution, since the different counties are apparently using different procedures in attempting to count them.
Coleman's complaint is well-written and, on its surface, fairly reasonable. However, it is not clear how much good it will ultimately do him.
It seems clear enough that, as Coleman's complaint suggests, the Canvassing Board does not have the authority to require that the "fifth pile" ballots be counted. However, the Canvassing Board has not required that these ballots be included. Instead, it has merely recommended to the counties that they re-evaluate such ballots, and notified them that they will accept new vote tallies from them if they elect to do so.
The problem with this, Coleman's complaint alleges, is that the counties are applying inconsistent procedures in counting the "fifth pile" ballots. Most fundamentally, some counties are in the process of counting them, while others have chosen not to do so. Coleman contends that this violates Equal Protection, and cites Bush v. Gore as his principal point of case law. It is not fair, Coleman contends, that some counties might treat the same ballot differently from another one.
Coleman's lawsuit, however, runs into a couple of significant problems.
Firstly, if Equal Protection is being violated by the "fifth pile" process, then one can also plausibly argue that Equal Protection was violated in the initial accounting of such ballots, since some counties were apparently applying different standards to determine what did and did not constitute a legal ballot in the first place. In Duluth, for example, local officials had been rejecting any absentee ballots that did not have a date next to their signature, before discovering that this is not a valid reason for rejecting a ballot under Minnesota law.
Coleman's more fundamental problem, however, is that it is not clear what kind of remedy the court could provide him with. The most obvious remedy would not be to throw out the fifth pile ballots in their entirety, but rather to set up a process wherein such ballots are counted uniformly from county to county. One should remember that, in Florida in 2000, the recount was brushing up against a state-mandated deadline for certification of the vote (in Bush v Gore, the court did not rule against Gore so much as it declined to intervene as his clock ran out). In Minnesota, however, there appears to be no specific deadline for completing the recount, and so such a concern would not apply. If the state needs to take a little longer to see that every vote is counted, then it probably will.
It is also less than clear that Coleman would stand to benefit if such a comprehensive and consistent review of absentee ballots took place. On the contrary, to the extent that Franken expects to benefit from having the absentee ballots counted, he would probably prefer that more rather than fewer counties do so. Moreover, among the counties that have declined to count their fifth pile ballots is Ramsey (St. Paul), which is among the bluest counties in the state and a huge source of potential gains for Franken.
Coleman, then, seems to be adopting something of an underwear gnomes strategy:
1. Force Franken to go to court to get the absentee ballots counted;
Coleman could very conceivably win his lawsuit, but have it work to his ultimate detriment if the end result is a more complete and comprehensive review of the absentee ballots. Until and unless Coleman comes up with some arguments why the rejected absentee ballots should not be counted at all, he is likely spinning his wheels, regardless of what the court rules today.