Minnesota Election Court Nixes Coleman’s Bush v. Gore Gambit, Denies Motion To Count 4,500 Ballots

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February 3, 2009 4:03 p.m.
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The Minnesota election court has just handed down a major ruling, completely denying Norm Coleman’s motion for summary judgment that would have opened up and counted a set of roughly 4,500 rejected absentee ballots that his campaign insists were wrongly rejected and ought to be counted.

Earlier today, the court similarly rejected Franken’s attempt to have the ballots set aside entirely and to limit Coleman to a pool of 654 ballots, which at the time the Coleman camp was hailing as a major victory that will ensure votes are counted. But it turns out it’s not that easy.

The upshot of the two decisions is that Coleman may argue on behalf of these voters, but there is no guarantee that they’ll be counted. Instead, he’ll need to argue for them one by one. And of course, the Franken campaign will have a full opportunity to cross-examine Coleman’s witnesses — many of whom have demonstrated that they in fact committed clear errors in filling out their ballots — and to also play this same game down the road.Specifically, the court shot down the Coleman campaign’s claim that absentee voting in Minnesota should be regarded as a right, rather than a privilege, and that the four specific reasons for rejecting an absentee ballot are clear and fully binding: “A citizen who exercises this privilege can register and vote, by the terms of the law, only by complying with provisions.”

The court also rejected the Coleman camp’s comparison of this case to Bush v. Gore, and their invocation of an equal protection argument in the unequal treatment of absentee ballots by individual election officials across the state. In fact, the court said, the standards are clear and objective.

The practical effect of this finding is that it ensures a higher burden of proof for demonstrating that an absentee was wrongly excluded, rather than the much lighter substantial compliance standard that Coleman wanted to use.

On a conference call with reporters tonight, lead Franken lawyer Marc Elias was quite understandably happy with this decision. “The court has to presume, absent any evidence that the election officials acted lawfully,” Elias said, adding that the Coleman team now “have to meet their burden to show that a given ballot was not treated properly by this official.”

Although it doesn’t guarantee that any votes will or won’t be counted, we can safely predict one thing: This is going to take a long time.

Late Update: The ruling is available here.

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