The Coleman campaign has just filed a very interesting motion in the election trial, changing their position for the fourth or fifth time on whether to count rejected absentee ballots — and demanding that votes they’ve already stipulated as legal should be thrown out.
A review of the back-story is necessary. You might remember that the campaigns agreed during a statewide review of rejected absentee ballots that a group of 933 ballots were in fact legal and should be counted. Those ballots were counted on January 3, and they gave Al Franken a net gain of 176 votes. The Coleman campaign then started crying foul that some of these votes were really illegal and had to be thrown out.
When those votes were counted, numbers were affixed to the ballot envelopes and the ballots themselves, a just-in-case measure for if they would have to be thrown out again later on. Coleman later dropped this claim, and the election court’s order to formalize this also commanded the Secretary of State’s office to redact those numbers, in order to protect the secret ballot.
But now Coleman wants an order to stop the redactions, and to declare that some of these votes must be identified and thrown out. (ed. note: It is now too late to completely do this. See late update below.)
So Coleman was originally against counting them, then for it, then against it, then for it, and now against it, in that order.The Coleman camp’s claim is based on the fact that the court ordered last week that any new absentee ballots brought in will have to meet very strict standards to show that they were legal votes and thus improperly rejected the first time around.
But here’s the big complication, Coleman argues: A portion of those 933 ballots wouldn’t have met these standards, and thus they are illegal votes.
And since they are illegal votes, Coleman’s prior agreements to count them do not matter. “The fact that contestants stipulated to the February 3, 2009 Order does not change the analysis,” the motion says, arguing that the old stipulation was made under a legal understanding that no longer applies for what constitutes a legitimate ballot.
“More importantly, parties cannot agree to render legal a vote that is illegal,” they also say, later adding: “Simply put, the stipulation is by its own terms null and void.”
Late Update: John Aiken, communications director for the Secretary of State’s office, has just informed me via e-mail that they are in fact halfway done with the redactions. This means Coleman’s request is too late to have true materiel success — even if the legal logic were held true, it’s now impossible to fish out at least some of the votes he would want to toss out.
And Coleman’s camp must have known this. They dropped their claim about these ballots over two weeks ago, and that’s when the order to make the redactions was then handed down.
But this could have impact in another way: Their legal reasoning would lead one to the conclusion that the whole vote-count number is tainted.
Late Late Update: Deputy Secretary of State Jim Gelbmann told the Star Tribune that maybe you could get those numbers back, as they are wiped out using a black Sharpie permanent marker: “I would guess, when you look at forensic science, if you really, really wanted to, you could find some way to get rid of the black marker and find out what number is written in red ink.”