With Votes Counted, Franken Now Leads By 312 Votes

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April 7, 2009 9:08 a.m.
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Minnesota has just finished counting the 351 previously-rejected ballots approved by the three-judge panel as having been legally cast and rejected in error. The numbers: Al Franken 198, Norm Coleman 111, Other 42.

This means that Al Franken’s lead has increased from the 225 he had going into today, up to 312 votes out of roughly 2.9 million. We still need to wait for the judges to rule on the remaining issues, but the vote-counting during the election contest-proper is done.

The only way for Coleman to overcome this lead would be to win an appeal against the election court’s prior rulings in favor of strict standards to let in new ballots, or to somehow win his much more far-fetched proposal to retroactively declare a number of absentee votes illegal and deduct them from the totals based on countywide averages. The first one is more likely in terms of feasibility, and even that’s a long shot, leaving the Coleman camp at their other proposal to “set aside” the election result entirely.So at this point Coleman is left to appeal to get more votes put in from his campaign’s list, under more lenient standards and a lower burden of proof — the court rejected many of his submissions on the grounds that his legal team had failed to provide sufficient evidence — and to prevent Franken from succeeding at this same game.

But other potential avenues of appeal — the missing 133 ballots from the recount, which gave Franken a net +46 from the Election Night returns, or Coleman’s claim that Franken gained about 100 votes from accidental double-counting of absentee ballots — simply aren’t enough, and they weren’t enough before today, either.

For now, Franken won’t be able to get a certificate of election. The court has to hand down a ruling, perhaps in the next week or two, declaring a winner in the race. And then a certificate can’t be issued until at least after the state Supreme Court rules on the likely appeal. And then the question becomes whether GOP Gov. Tim Pawlenty will issue a certificate, whether the state Supremes will order it, or a federal court would issue an injunction against it, etc.

Whatever form Coleman’s litigation takes from here, expect the appeal to happen in some form in state and/or federal courts, and for the Senate GOP to fight any effort by Franken to be seated.

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