The Coleman campaign may have just given away the store on a very important point in their challenge to the Minnesota election results — conceding that missing ballots from the recount that were still included in the final numbers did in fact exist.
During the recount, a deep-blue Minneapolis precinct came up with over 130 less ballots than were counted on Election Night, costing Al Franken a net 46 votes. The city eventually concluded that an envelope full of ballots labeled “1 of 5” was missing. After it wasn’t recovered, the state canvassing board agreed to revert to the Election Night total for this precinct, rather than disenfranchise these voters.
The Coleman campaign vowed to contest it in court. Their position had been that there was no evidence the ballots existed, citing an earlier hypothesis by the city that ballots might have counted twice by the machines on Election Night — which the city had quickly discarded when the precinct roster nearly matched the number of Election Night votes. And even if they do exist, the Coleman camp has still said they can’t be included in the recount.Yesterday evening and this morning, lead Coleman lawyer Joe Friedberg questioned Minneapolis elections director Cindy Reichert, in an effort to show how secure the city’s process is for handling ballots, and how thoroughly they looked for this envelope.
Then Franken lawyer David Lillehaug had Reichert rub together two envelopes just like the ones used to store the ballots — they’re slippery. And Reichert said there is a theory about what might have happened, though nobody can pin it down, that the “1 of 5” envelope may have been taken off the top of the stack, and somehow lost along the way.
Upon further questioning, Reichert confirmed that she is convinced beyond a doubt that the ballots were real, based on the precinct roster and other information, and have gone missing.
After a sidebar, Friedberg got up to speak. “We have no doubt that a number of ballots existed inside an envelope that has been lost,” he said. “If it appears we’re taking the position that these ballots have been invented, that’s not our position.” He added that they acknowledge that there were some ballots there, and they are now gone. “Does that help?”
To which Lillehaug answered: “It does.”
At this point, Friedberg attempted to cast doubt on the reliability of the machine tapes and the precinct rosters to give true certainty that we know how many ballots are missing, a number that Reichert pegs at 132, or what the votes themselves were.
The Coleman camp may have just given up way too much. This past Monday night, the court denied Franken’s motion for summary judgment on this — but it was only because the existence of the ballots was still a point of factual contention in the case. Furthermore, the court acknowledged in their opinion the body of case law pointing to including the votes. But they had to settle the factual dispute.
If the facts are settled, this matter is over — or at least it’s over in this court. Next up will be the appeals.