Coleman's Futile Election Contest

The Coleman campaign has long contended that ballots were counted twice in certain precincts due to clerical errors. Within their election contest they explicitly address this issue, and for the first time reveal which precincts meet their double counting criteria; the motion was filled on January 6th, 2009. The Coleman campaign also addresses a few other issues pertaining to appearing ballots and other errors. The contents of this article will focus entirely upon Article 12 of the election contest, beginning on page 4, and the Exhibits referenced therein:

12. By way of example only, erroneously and wrongfully included in the vote totals certified by the Board were a significant and material number of:

(a) Ballots which were counted twice during the Recount due to such Ballots being not marked as "DUPLICATES" and matched with its "Original" Ballot in contravention of Minnesota Statutes § 206.86, subd. 5. On information and belief, double-counting has occurred in numerous precincts throughout the State of Minnesota including, without limitation, the precincts described within Exhibit C attached hereto. The Coleman for Senate campaign filed a Petition with the Minnesota Supreme Court seeking to avoid this double-counting, but the Minnesota Supreme Court, pursuant to Order dated December 24, 2008, held that the proper venue for resolution of this issue was an election contest. A true and correct copy of the Minnesota Supreme Court Order dated December 24, 2008 relative to double-counting of original and unmarked duplicate Ballots is attached hereto as Exhibit D;

(b) Ballots which were not counted on election night but were "found" and counted during the Recount (despite lack of any chain of custody or other assurance or evidence of the reliability or integrity of such Ballots), which Ballots exceed the number of persons who voted in such precincts on Election Day. This occurred in numerous precincts throughout the State of Minnesota including, without limitation, the precincts described within Exhibit E attached hereto and incorporated herein by reference. True and correct copies of documents relating to these precincts are attached as Exhibit F hereto and incorporated herein by reference;

(c) Alleged Ballots which were not located or viewed during the Recount but which were "counted" during the Recount and included within Recount totals because they were deemed "missing" by the Board, despite any evidence that such alleged Ballots were actually missing and contrary to Minnesota case law. This occurred in the City of Minneapolis Ward 3 Precinct 1. Accordingly, the Board erroneously and inconsistently certified election-night numbers from this precinct, despite the fact that the Board did not certify election-night numbers from any other precincts during the Recount, including, without limitation, the precincts identified within Exhibit C and Exhibit E attached hereto. True and correct copies of documents relating to the City of Minneapolis Ward 3 Precinct 1 are attached as Exhibit G hereto and incorporated herein by reference;

...

(f) Ballots which were challenged by representatives of the Coleman for Senate campaign during the Recount, which challenges were erroneously and inconsistently rejected by the Board and therefore erroneously ruled by the Board as votes for Contestee Al Franken.

(g) Ballots which were challenged by representatives of the Franken for Senate campaign, which challenges were erroneously and inconsistently upheld by the Board and therefore erroneously not ruled by the Board as votes for Contestant Norm Coleman.

Source: MNCourts.org

Articles 12.D and 12.E govern the improper inclusion or exclusion of wrongfully rejected absentee ballots. These articles do not directly reference any supporting evidence due to voter protection laws. The Coleman campaign may have internal data that supports this case, some of which they presented in Exhibit B, but the public release of this information must be cleared with the voter whose ballot they wish to publish. As such, there is no publicly available information pertaining to the complete subset of wrongfully rejected absentee ballots. Thus, any consideration involving Articles 12.D and 12.E are omitted.

The entire election contest contains seven exhibits (A-G); five (C-G) are referenced within Article 12 and are analyzed in detail below. Exhibit A consists of three documents posted on the SOS website pertaining to the recount result. The first document provides a scan of the Certificate of the Minnesota State Canvassing Board acknowledging the result of the recount as signed on January 5th. The second document depicts a scanned copy of the recount results by county as of January 3rd. The final document contains the Senate Recount Canvassing Draft as published on January 4th and presented at the January 5th meeting of the State Canvassing Board.

Exhibit B contains the Order of the Minnesota Supreme Court's decision regarding absentee ballots on January 5th. The Exhibit is then divided into Sub-Exhibits, B-1 and B-2. Exhibit B-1 is further divided into four groups, A-D; each of which contains scanned copies of the secrecy labels located on the outside of absentee ballots. Each subgroup contains ballots which were opened and counted during the recount. Exhibit B-2 contains scanned absentee ballot labels which were not opened and counted, but the Coleman campaign alleges that they should have been opened and counted.

Let's begin by looking at the evidence the Coleman campaign presents in Exhibit C:

EXHIBIT C: [Page 109 of 204]

PRECINCTS IN WHICH DOUBLE VOTES WERE CERTIFIED BY MINNESOTA STATE CANVASSING BOARD

[The County/Precinct is the only column listed within the legal brief; the Errors and Margin column have been appended along with the Total row.]

     County/Precinct              Errors   Margin (%)
     Dakota/Eagan P-3                9     Col (4.11)
     Hennepin/Minneapolis W2-P5      4    Fra (49.14)
     Hennepin/Minneapolis W3-P5      4    Fra (41.11)
     Hennepin/Minneapolis W5-P6      2    Fra (66.18)
     Hennepin/Minneapolis W7-P6     12    Fra (36.66)
     Hennepin/Minneapolis W7-P7      9    Fra (25.25)
     Hennepin/Minneapolis W8-P7     11    Fra (65.00)
     Hennepin/Minneapolis W8-P10     2    Fra (61.48)
     Hennepin/Minneapolis W9-P2      6    Fra (59.37)
     Hennepin/Minneapolis W10-P2    11    Fra (53.81)
     Hennepin/Minneapolis W10-P4     5    Fra (57.14)
     Hennepin/Minneapolis W10-P7     1    Fra (59.38)
     Hennepin/Minneapolis W10-P10    0    Fra (52.14)
     Hennepin/Minneapolis W11-P7     9    Fra (42.02)
     Hennepin/Minneapolis W11-P8    22    Fra (31.88)
     Hennepin/Minneapolis W12-P8    14    Fra (47.00)
     Hennepin/Minneapolis W13-P1     0    Fra (29.93)
     Hennepin/Minneapolis W13-P3     1    Fra (43.13)
     Hennepin/St. Louis Park W3-P12  1    Fra (25.98)
     Saint Louis/Cedar Valley        0     Fra (9.16)
     Saint Louis/Duluth P4           2    Fra (10.88)
     Saint Louis/Duluth (Gnesen)     1     Fra (5.72)
     Total                          126

Source: MNCourts.org

These 22 precincts originate from an affidavit filed [Original 18.6 MB] in connection to the Coleman campaign's December 19th request to the Minnesota Supreme Court to prevent any ballots from being counted twice. Their original table included one additional precinct:

     County/Precinct              Errors   Margin (%)
     Hennepin/Robbinsdale W-4        1    Fra (27.56)

I have no idea why the Robbinsdale precinct was removed from the election contest brief; although it was the only one, of the 23, to list "N/A" as the challenge reason.

Within Article 12.A, the Coleman campaign justifies their inclusion of the 22 precincts included within Exhibit C based upon the Minnesota Supreme Court's decision on December 24th in Exhibit D regarding unmarked duplicate ballots:

EXHIBIT D: [Page 111 of 204]

...

IT IS HEREBY ORDERED THAT:

1. The petition of Norm Coleman for relief from the December 19, 2008 decision of the State Canvassing Board rejecting challenges to unmatched original damaged ballots be, and the same is, denied. But our denial of the relief requested does not constitute a binding determination in a subsequent election contest proceeding.

2. Petitioner's motion for a temporary restraining order be, and the same is, denied as moot.

Dated: December 24, 2008

BY THE COURT

Alan C. Page

Associate Justice

MAGNUSON, C.J., and ANDERSON, G. Barry J., took no part in the consideration or decision of this matter.

...

Source: MNCourts.org

The Minnesota Supreme Court essentially ruled that they could not definitively reach a decision regarding the double counting issue based upon the lack of evidence presented during the oral arguments and within the attached affidavits (case# A08-2206) provided by the Coleman campaign.

The Coleman campaign provided just 20 precincts with anomalous voting errors, as listed in Exhibit C, but based upon my work there appears to be 351 precincts which meet the Coleman campaign's classification, and likely the correct interpretation of double counted votes. I've compiled a comprehensive list of Minnesota's 4130 precincts and the ad-hoc absentee ballot precinct into a series of tables, detailing these voting anomalies. These tables are available for download below:

By Precinct: PDF, 588 KB
By County: PDF, 112 KB
Composite of All Precincts and Counties: PDF, 604 KB
Anomalous Precincts Sorted Alphabetically and by Errors: PDF, 200 KB

Had the Coleman campaign presented all 351 precincts, instead of cherry picking precincts likely to favor their cause, the Supreme Court may have reached a more favorable determination. Instead the Coleman campaign is left fighting an election contest, which may have happened anyway. Let's take a look at a few possible outcomes regarding double counting in these 351 precincts:

Error            Anomalous          Won By         Coleman
List             Precincts  Franken  Coleman  Tie    Gain
Exhibit C            22        21       1      0     50.9
VoteForAmerica[1]    9         8        1      0    -26.9
VoteForAmerica[2]   351       176      173     2     44.3
VoteForAmerica[3]    3         2        1      2     46.8
VFA Composite[4]    356       178      175     2     74.2
Maplewood P-06       1         1        0      0     13.2
St. Paul W-3 P-09    1         1        0      0      3.9

(1) References non-zero entries within the "Total Voters 11/4 - Pre-Recount Results 11/17" column of the "Anomalous Results" section from any of the precinct level PDFs provided above. Maplewood P-06 and St. Paul W-3 P-09 are not included in this list.

(2) References non-zero entries within the "Total Voters 11/4 - Final Recount Results 1/5" column. This list matches the classification used by the Coleman campaign within Exhibit C and is bolded for this reason. Maplewood P-06 and St. Paul W-3 P-09 are included in this list.

(3) References non-zero entries within the "Registered Voters 11/4 - Final Recount Results 1/5" column. Maplewood P-06 and St. Paul W-3 P-09 are not included in this list.

(4) References non-zero summations of all three columns present within the "Anomalous Results" section from any of the precinct level PDFs provided above. Maplewood P-06 and St. Paul W-3 P-09 are not included in this list.

Note: The ad-hoc absentee ballot precinct is not included in any of calculations above. Minneapolis W-3 P-01 is not included in any of the VFA error lists because there were no errors recorded in any of the three columns present within the "Anomalous Results" section from any of the precinct level PDFs provided above.

After the final day of challenge resolutions on Friday, December 18th, the Coleman campaign knew they trailed. While the public was unaware of how the withdrawn challenges would lie, my guess is that both campaigns had a fairly good idea of their probable outcome; which eventually resulted in a Franken lead of between 46 and 50 depending upon the day and the source. The very next day, on Saturday the 19th of December, the Coleman campaign filed their case with the Minnesota Supreme Court containing their original list of potentially double counted ballots as discussed previously.

The Coleman campaign knew going into the filing that they trailed by about 50 votes and they knew that their list of double counted ballots would probably net them about 50 votes with just the wrongfully rejected absentee ballots left to count. The Franken campaign had long attempted to include these wrongfully rejected absentee ballots because it would likely add to their vote total; the Coleman campaign seemed to embrace this reasoning.

Had the Coleman campaign submitted a more comprehensive list of potentially double counted ballots, say a list containing 351 precincts, the Supreme Court may have reached a different conclusion. The Coleman campaign could have lead going into the wrongfully rejected absentee ballots stage; they would have then been in a position to essentially bypass the wrongfully rejected absentee ballots based on the Supreme Court's later ruling. The Coleman campaign could have been in a vastly superior position had they take into account the interest of all Minnesotans, rather than just the Minnesotans in a select 22 precincts. Coleman would likely have been certified the winner and it would be Franken filing the election contest seeking to include the absentee ballots which the Coleman campaign would have likely vetoed.

Instead it is Coleman arguing for additional votes. The following three Exhibits illustrate specific precincts in which the Coleman campaign believes systematic errors occurred that "artificially" benefited Franken's vote total:

EXHIBIT E: [Page 118 of 204]

DESCRIPTION OF PRECINCTS IN WHICH MORE BALLOTS WERE COUNTED DURING THE RECOUNT THAN PERSONS VOTED ON ELECTION NIGHT

Maplewood Precinct 6:

The election night totals indicated 1,396 votes cast (inclusive of accepted absentee ballots). However, the Recount tallied 1,564 votes cast although only 1,533 voters cast ballots according to the precinct's record of pre-registered voters, election day registrants and accepted absentee ballots. Hence, an excess of thirty-one (31) more votes than voters were certified by the Board relative to this precinct in the Recount.

St. Paul Ward 3, Precinct 9:

The election night totals indicated 1,747 votes cast (inclusive of accepted absentee ballots). However, the Recount tallied 1,764 votes cast. Hence, an excess of seventeen (17) more votes than voters were certified by the Board relative to this precinct in the Recount.

Source: MNCourts.org

I have absolutely no idea how the Coleman campaign arrived at the 1533 number described within the preceding quote. The total voters per precinct data that I used in my calculations was accessed at the Secretary of State's website on January 12th; I compared this data to a subset of the same data as accessed on November 24th. From this comparison, Hennepin County's total voter data increased by 8 votes. I could not identify which precinct(s) were affected in Hennepin County as I do not have a complete set of precinct data from November 24th; I have data from about 3400 of Minnesota's 4130 precincts and a complete overview of the count by county. Each of these 3400 precincts and all other counties remained completely unchanged from November 24th to January 12th. It is entirely possible that the data available before November 24th presented different information and that is where the Coleman campaigns gets their 1533 figure. The data provided in the contest brief relating to St Paul's 3rd Ward and 9th precinct are much more agreeable to the data I used:

                   Maplewood P-06  St. Paul W-3 P-09
Candidate              Votes             Votes
DEAN BARKLEY (IP)   197 (14.24%)     223 (14.24%)
NORM COLEMAN (R)    542 (39.19%)     563 (39.19%)
AL FRANKEN (DFL)    628 (45.41%)     933 (45.41%)
OTHER                16 (1.16%)       8 (1.16%)

NOV 4TH TOTAL      1383 (Fra +86)   1727 (Fra +370)
FINAL RECOUNT      1564 (Fra +123)  1765 (Fra +386)
TOTAL VOTERS            1396              1747

FINAL - VOTERS           168               18

I think it's fairly safe to say that something unusual happened in both of the preceding precincts. While St. Paul W-3 P-09 seems to be a standalone anomaly, that will eventually benefit Coleman, Maplewood P-06 is another story. The Coleman campaign further addresses this precinct, and the issues surrounding it in Exhibit F:

EXHIBIT F: [Page 120 of 204]

DOCUMENTS AND CORRESPONDENCE RELATING TO BALLOTS "FOUND" DURING THE RECOUNT BUT WHICH LACK ANY CHAIN OF CUSTODY OR VERIFICATION AS TO RELIABILITY

...

It is our understanding that you have not yet located any voter registration applications relative to the 171 additional ballots allegedly "found" in a voting machine in Maplewood Precinct 6, despite your assertions to the Star Tribune (in an article posted online yesterday afternoon) that these applications had already been found.

...

According to the statistical information provided by the election judges to the Maplewood city clerk, a total of 1,396 persons voted on Election Day. That was also the number of votes reported as cast by the summary statement tapes from the ballot counter. Since the total voting reported by the election judges agreed with the total number of ballots cast on the summary statement tape from the ballot counter, there was no reason at the time to believe that there was any problem with either of these data.

At the conclusion of the recount for that precinct, it became clear that the summary statement tape did not accurately reflect the number of persons and how they had voted. After reviewing the pre-registered polling place roster, the voter registration cards of election day registrants, and the accepted absentee ballot return envelopes, we have determined that the voter statistics submitted by the election judges were also in error.

We have determined from the recount that a total of 1,564 ballots were cast at that precinct. From an examination of the voter registration and absentee voting materials, we can confirm that 1,560 persons voted. It is possible that the other four voters were issued a ballot without signing the polling place roster, but at this point we do not know this for a fact. We will continue to examine the materials in our possession and will inform you if we are able to resolve this matter.

...

Source: MNCourts.org

I honestly have no idea what to think of Maplewood P-06, but we do know that Franken gained 37 votes from the late inclusion of the 171 ballots referenced above within Exhibit F. Coleman's entire case may rest on the possibility of these 37 votes affecting the outcome. For now we'll move onto another weird scenario discussed in the next exhibit:

EXHIBIT G: [Page 129 of 204]

DOCUMENTS AND CORRESPONDENCE RELATING TO CITY OF MINNEAPOLIS WARD 3 PRECINCT I

...

While only 1,896 ballots were produced, the figures furnished to the campaigns by Minneapolis elections official Cindy Reichert show that at least 2,028 people voted on Election Day. The machine tape for Precinct 3-1 shows that 2,028 voters cast ballots. Further, according to Ms. Reichert: 1,047 people signed the roster; 932 people were new registrants; and 50 absentee ballots were accepted. The total of these is 2,029. Further, Minneapolis reported that 1,965 people cast votes in the U.S. Senate race.

In other words, there are 133 missing ballots.

...

Source: MNCourts.org

At first glance this Minneapolis precinct appears to mirror the situation of Maplewood P-06; but the correlation between the number of acknowledged voters and the number of recorded votes on November 4th yields fairly conclusive evidence to support the assertion that 133 ballots were in fact lost. There is additional evidence beyond this numerical correlation to support the lost ballot theory. Minneapolis Elections Director Cindy Reichert stated that there were five envelopes containing ballots in Minneapolis W-3 P-01; of these five envelopes, the first is missing while the remaining four envelopes and the ballots contained therein were located. A more official report from Hennepin County suggests that there may have actually been six envelopes; the report also concludes that an envelope label "1 of 5" is likely missing containing the suspicious 131 ballots. The reversion to original election day tally netted Franken an additional 46 votes.

Regarding Articles 12.F and 12.G:

The Coleman campaign had an opportunity to re-challenge the challenge ballot determinations of the Minnesota State Canvassing Board on December 23rd. The Coleman campaign presented a list of 16 ballots which they believed merited reconsideration. They also included 24 similar ballots that they believed supported their objective. The Board reviewed these 40 ballots, and nothing happened.

If past performance is any indication of future success, it doesn't appear as though the Coleman campaign has a serious case regarding "challenges [which] were erroneously" ruled upon by the State Canvassing Board. The ballots in question can be viewed on the StarTribune website, at least until they're forced to close shop.

With Franken currently certified as the recount winner by 225 votes, Coleman faces a tough battle. If we go through each Exhibit presented within this article and extract any votes that may potentially be added to any candidate, Coleman does not retake the lead:

     Precinct                                      Coleman 
     List                                            Gain
     VFA Composite[4]                                74.2
  -  Maplewood P-06 Projection                       13.2
  -  St. Paul W-3 P-09 Projection                     3.9
 ---------------------------------------------------------
     Coleman's Best Case Double Counted Result       57.1
  +  Maplewood P-06 Late Inclusion of 171 Ballots    37.0
  +  St. Paul W-3 P-09 Late Inclusion of 38 Ballots  16.0
  +  Minneapolis W-3 P-01's 131 Lost Ballots         46.0
 ---------------------------------------------------------
     Coleman's Best Case Election Contest Gain      156.1

Norm Coleman is unlikely to pick up enough votes during his election contest to overcome the current deficit. Coleman may have to rely on absentee ballots if he hopes to mount any sort of comeback. Based upon Norm's past performance in the realm of absentee ballots it will most certainly be an uphill climb.

The first step of the election contest occurred on January 12th when MN Supreme Court Justice Alan Page appointed the three member judicial panel tasked with presiding over the election contest; the appointed members are as follows:

Elizabeth Hayden: Stearns County Judge, appointed in 1986 by Democratic Governor Perpich.

Denise Reilly: Hennepin County Asst. Chief Judge , appointed in 1997 by Republican Governor Carlson.

Kurt Marben: Pennington County Asst. Chief Judge , appointed in 2000 by Independent Governor Ventura.

The next step of the process occurs on January 21st when the panel will meet to address Franken's motion to dismiss part of Coleman's election contest. This will not be granted, the election contest will proceed. The actual contest will begin on January 26th but the actual agenda for that date has not yet been set.

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6 Response(s) to Coleman's Futile Election Contest

1
mbw
1/19/2009 12:44:58 PM CT

I think it's a mistake to include W3-P01 as just another possible site for a Coleman gain from correction of anomalies. We know beyond a reasonable doubt by multiple lines of evidence that those 131 votes existed, and we know how they were counted by machines that were working well. This is the one precinct in the state where an envelope of vote went missing. It's also the one precinct in the state where election workers had created major problems- reported in the press before any missing vote problem arose- by refusing to accept proof of residency from DFL-leaning students. The obvious, though not certain, interpretation is that the ballots are missing due to criminal acts. We should not be validating any attempt to treat this as a routine situation in which the Coleman team has a legitimate chance to pick up anything except a prison sentence or two.
2
Macrosteles
1/19/2009 4:05:05 PM CT

When Norm Coleman found his path in the DFL was blocked by his own behavior he switched to the Republican Party. He has never reached 50% in a state wide election contest - only and accident of fate put him in the US Senate. If there is cosmic, political justice he will not "win" this election.
3
Anonymous
1/19/2009 9:23:57 PM CT

To: Senator Norm Coleman;

Coleman the votes were hand counted, this baby is over, wait your turn to become some lobbyist for some corporation that have been funding you campaigns for the Senate. This isn't Florida in 2000, Minnesota runs cleans elections, public servants are not appointed-scalia style.
4
Skyblue
1/21/2009 5:45:40 PM CT

Wow, and I thought I'd been obsessed in following this. Remarkable research. I hope you don't mind if I refer others to it.

Coleman "case" is peppered with nothing but desperation. This lawyers are unable to make consistent cogent arguments. Normally one is entitled to their day in court, but theirs is a circus act, not a legal team. It is nothing more than a stalling act. A sitting senator with low approval ratings finishes a near second in a 3-way race. Sad to say the very least. He has no one to blame but himself, and GWB, and the RNC and the RNSC and well, all those Neocons and right wing nuts.
Thanks again
5
ABowers
1/21/2009 6:40:02 PM CT

A legal problem that Coleman has with the "Duplicate Ballots" is that Franken originally wanted to count duplicates, not originals. Reminder - a duplicate was made when the original was damaged and could not be fed into the machine. If they had done that, they would have been working with the same ballots as had been fed into the machines. But Coleman insisted that the originals be counted - easier to determine voter intent. Now that Coleman does not like the result, he wants to change the rules under which the recount was done and which he had agreed to. But a claimant cannot go back and change the rules, just because he did not like the result. There is a Latin term for it - suis juris - or something. It is as if you were playing baseball and agreed that 3 strikes and you are out. But in the bottom of the 9th, with 2 outs, you say you want 4 strikes to be out and not 3. Besides, there is no easy, fair solution. Franken says it would require a complete recount - not likely.
6
YoungObi
1/24/2009 8:34:09 PM CT

Wow, this guy must be real fun at parties.

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