Supes ’n’ Dupes: Minnesota Supreme Court grills recount rivals on duplicate ballots

The Minnesota Supreme Court was visited by the Ghosts of Last Week Past on Tuesday afternoon when both sides of the ongoing Senate recount paid their second visit in five days to the state’s highest court. Attorneys for Democrat Al Franken and Republican U.S. Sen. Norm Coleman (the same attorneys who debated last Friday about wrongly rejected absentee ballots) argued about a different issue today: the Coleman camp’s request to stop the recount and determine whether ballots that were damaged and duplicated for counting purposes on Election Day caused local officials to count single votes twice during the recount.

As on Friday, five sitting justices grilled campaign attorneys, signaling dissatisfaction with both sides’ positions on a Coleman recount lawsuit. (Two of the seven-member court absented themselves because they’re serving on the State Canvassing Board that the Coleman campaign has been named as a defendant in the duplicates case.)

Roger Magnuson, Coleman’s attorney, asserted there’s evidence of double counting in 25 counties and wants the State Canvassing Board to check it out before certifying the vote. The double counting allegedly happened when voters’ original ballots got separated from the duplicate ballots onto which local election officials transferred the votes when vote-counting machines couldn’t read the original.

“This disenfranchises all the other voters,” Magnuson said, adding that the narrow margin of the race, which now unofficially has Franken at a 47-vote advantage, raises the specter “that the loser is declared the winner.”

Associate Justice Paul Anderson prodded Magnuson on questions of evidence and process. “Isn’t this an evidentiary issue best left for an election contest?” Anderson asked. (Election contests are lawsuits filed after the State Canvassing Board certifies the election results.) He also asked how the electoral emergency that the Coleman side asserts in the lawsuit measures up against the judicial yardstick scenario of a house burning down.

“[There is] enough suspicion, enough evidence,” Magnuson said. “[We're asking for] an extraordinary intervention simply to do the due diligence to settle this matter.”

Magnuson cited comments of concern about the likelihood of double-counted votes that Associate Supreme Court Justice G. Barry Anderson made last week as a member of the State Canvassing Board. (Chief Justice Eric Magnuson was also not present for today’s hearing because, like G. Barry Anderson, he’s on the State Canvassing Board.) Associate Justice Alan Page bristled at that: “Our fellow justices aren’t here and they don’t have to wrestle with this issue like we do.”

One major point of contention was how much work the requested court action would compel on the part of local election officials. Attorney Magnuson said it would be limited to 25 precincts statewide; “They’re cherry picking,” Franken attorney Bill Pentelovich countered. The Coleman camp is trying to rewrite agreed-upon rules for counting duplicate ballots, he said, and to ensure fairness “all 4,001 precincts would have to be recounted.”

Attorney Dan Rogan, speaking on behalf of defendant Hennepin County, said Coleman’s suit was wrong to single out counties at all because the remedy of recounting bypasses county canvassing boards.

Assistant Minneapolis City Attorney Peter Ginder said statements by City Elections Director Cindy Reichert about cases of double-counted votes — which Coleman’s camp frequently cites to buttress its claims — merely represented one of several possible explanations for tabulation discrepancies.

Attorney General Lori Swanson asserted the State Canvassing Board’s duty to sidestep the duplicate ballot question since — despite four of its members being judges — it has no authority to conduct the necessary fact-finding and make judgements based on such evidence.

That wasn’t sufficient, Attorney Magnuson said: “This court ought not to remain passive because this particular issue might determine the election in terms of who’s declared [victor].”

With that the court adjourned, making no immediate ruling from the bench — though a decision could come at any time.