Judge Hayden. Photo: UpTake

If only they’d used washable markers.

The Norm Coleman campaign this morning asked the judges in Minnesota’s Senate election contest trial to stop the secretary of state’s office from marking out numbers (pdf) on 933 absentee ballots that link them to the envelopes in which they arrived. But state workers have already blacked out almost all of the numbers, according to The UpTake.

UPDATE: The Secretary of State’s office now says half of the ballots remain unredacted. 

In a motion filed this morning, Coleman asked the court for a temporary injunction order to halt the redacting of the ID numbers. The work of separating envelopes from absentee ballots and marking out the numbers was included in the court’s Feb. 13 order, which also ruled out a dozen or so categories of absentee ballots from future re-examination.

Presiding Judge Elizabeth Hayden opened today’s session by announcing that the three-judge panel would hear arguments on a motion — possibly Coleman’s request for temporary injunction — later this afternoon.

Votes from the 933 ballots were added to the official election tally by order of the state Supreme Court during the last phase of the recount that ended last month. Attorneys for both Coleman and his rival, Democrat Al Franken, have since agreed those votes belong in the count.

But Coleman now contends that some of the 933 ballots fall into categories that the election trial court has refused to review as unlawfully cast. Because he might want to disallow some of the 933 votes on that basis — in itself, an about-face from pledges he wouldn’t seek to remove already-counted votes from the tally — he wants the redaction ordered a week ago to stop.

According to the UpTake, Deputy Secretary of State Jim Gelbmann said re-linking redacted ballots and envelopes would require forensic research. Still, the move could serve to bolster equal-protection claims that Coleman’s attorneys have been pressing with increasing vigor in and out of the courtroom.

Judges Hayden, Marden and Reilly. Photo: The UpTake

The three judges who will decide whether Norm Coleman prevails in his election contest of Minnesota’s Senate recount limited their scope late today by ruling out re-examination of at least 12 out of 19 ballot categories. 

“[T]he facts presented thus far do not show a wholesale disenfranchisement of absentee voters in the 2008 general election,”  the judges wrote in a 17-page order and memorandum (pdf). “[T]here is no systemic problem of disenfranchisement in the state’s election system, including in its absentee-balloting procedures.”

At a hearing Thursday, former Sen. Norm Coleman had argued that most kinds of ballots in the court’s 4,800-ballot pool be counted, while challenger Al Franken — who still holds a 225-vote lead from the recount — had argued for far fewer.

The upshot, according to The UpTake, is that the court’s pool has been cut to about 3,500 ballots — with the onus on Coleman to show ballots were lawfully cast, not only wrongfully rejected. 

In ruling categories of rejected ballots out of further examination, the judges said that non-registered voters’ votes were not cast legally, even if the voters’ failure to register was somehow the fault of election officials.

The same goes for absentee ballots from voters who one way or another didn’t meet legal requirements; ballots for which registration and ballot envelope addresses don’t match; ballots for which the voter didn’t sign the application or return envelope; and ballots for which a notarization doesn’t carry  a stamp or seal. They are not, in the court’s view, legally cast.

Nor are ballots legal for two other categories: those from voters not registered in the precinct for which the ballot was submitted and absentee ballots received past legal deadlines.

Here are the seven kinds (some reports read the court order as saying six) of previously rejected absentee ballots the court appears to have ruled today that it may examine. Ballots that were:

- Returned by a non-registered voter in an absentee ballot return envelope on which no box in the proof of residence portion of the envelope is checked by the witness.

- Cast by a voter registered and eligible to vote in a precinct who was issued a ballot for the wrong precinct due to an official error.

- Submitted from overseas where there is no evidence that the voter submitted a Federal Post Card Application or absentee ballot application.

- Cast by a voter where there is no independent evidence that the voter completed an absentee ballot application.

- Submitted in an absentee ballot return envelope in which the witness certification is signed by a non-notary witness who failed to provide a street address.

- Submitted within a non-registered voter absentee ballot return envelope on which the voter failed to sign the certification’s signature box but did sign the envelope elsewhere.

- Cast by a non-registered voter who was not registered to vote in the precinct encompassing the voter’s address on the absentee ballot return envelope and absentee ballot application.

- Cast by a voter not registered to vote within the precinct in which he or she resides.

Here are the 12 kinds (though some reports say 13) of rejected absentee ballots summarized above that the court ruled today it won’t examine. They include ballots that were:

- Submitted by a voter in an absentee ballot return envelope on which the voter’s address is not the same as the information provided on the absentee ballot application.

- Submitted by a voter in absentee ballot return envelope in which the witness certification on the absentee ballot return envelope is signed by a person identified as a notary public but no notarial seal or stamp is affixed to the envelope.

- Cast by a non-registered voter who hasn’t submitted proper voter registration materials even if the voter wasn’t issued materials due to an official error.

- Submitted by a voter in an absentee ballot return envelope in which the voter failed to sign the certificate of eligibility on the absentee ballot return envelope where a sticker placed by election officials obstructs the certificate or signature block.

- Cast by a voter whose absentee ballot application does not contain a signature.

- Submitted by a non-registered voter who failed to sign voter-registration materials.

- Cast by a voter whose absentee ballot application was signed by another unless the application was signed by another individual in accordance with Minn. Stat. 645.44, subd. 14.

- Submitted from overseas but arrived late.

- Dropped off on Election Day in person.

- Dropped off by a proper agent on Election Day but after the statutory deadline for delivery.

- Cast by a non-registered voter who has failed to register to vote.

At least some of the ballots belong to voters who filed court affidavits suggesting they support Franken. The ruling may usher in more such additions to the recount tally that could eventually add votes to the tallies of both Franken, a Democrat, and Coleman, a Republican.

UPDATE: This post has been corrected. Originally the order appeared to list 25 ballots, but the voter whose application may be inside her ballot envelope was listed twice.

The lawyers estimate that the court would find more than half the 12,000 had been wrongly rejected. And unlike the rejected ballots that favored Franken, the Coleman forces say these 6,000 or so ballots would be more evenly distributed among the candidates.

Compared with Franken’s forces, the lawyers in Coleman’s camp are late converts to the belief that a plenitude of rejected absentee ballots in Minnesota’s Senate election need to be reviewed. Yet their new-found ardor is arguably twice as strong as their rivals’ — they want the court to review ballots that election officials have by now twice rejected:

[W]e intend to vigorously … request that the 3-judge panel allow for the possibility that the roughly 12,000 rejected absentee ballots be opened.

That’s from a statement on Coleman’s campaign Web site, in which attorney Fritz Knaak openly baits the Franken campaign and Senate Majority Leader Harry Reid to challenge Coleman’s blanket request to review every rejected absentee ballot:

We expect that Minnesotans will share the same stunned disappointment we do to learn that the Franken campaign may actually oppose this fundamental act of fairness.

Secretary of State Mark Ritchie has expressed dismay over the number of rejected absentee ballots in the election, and the state Legislature has taken up the issue for possible reforms this session.

Recount, International Falls, Minn., Nov. 24. Photo: Adam Lockhart

Here’s a quick recap of the latest developments in Minnesota’s Senate recount as of mid-day Monday.

The biggest remaining pool of disputed ballots — 1,346 that that local officials rejected on Election Day for no legal reason — remain disputed. The campaigns of Al Franken and U.S. Sen. Norm Coleman differ sharply on how many should be counted; indeed, the two sides are off by an order of 10.

Yet under a state Supreme Court order they must somehow reconcile their views this week at 12 regional meetings where the ballots’ fate will be decided.

Meanwhile, the state’s only sure-bet senator, Amy Klobuchar — no stranger to electoral squeakers — said she prefers a seat-’em-first, sue-’em-later approach to the contested post. The recount now comes down to the 1,346 absentee ballots that the state’s 87 counties didn’t tally but now say they should have. By order of the state Supreme Court, the counties will submit uncounted, unopened absentee ballots by Friday (that’s a time extension) to the State Canvassing Board, which will incorporate them into the overall vote count before it certifies the election.

Not all 1,346 are likely to make it into the certified tally. First, the campaigns of Al Franken and U.S. Sen. Norm Coleman will review the uncounted ballot envelopes this week at 12 regional meetings around the state and knock out any they find unworthy of counting.

Franken’s folks sent the Coleman camp a letter over the weekend that proposed the two sides skip that step and essentially approve the inclusion of all the counties’ uncounted absentee ballots by acclamation. The Coleman campaign said no, that’s not what the Supreme Court asked us to do.

After a weekend of reviewing the uncounted ballots, Franken wants to count all 1,346 and Coleman wants to count only 136 — about a tenth of the total. The Supreme Court’s order includes a threat of unnamed sanctions for unreasonable objections but it isn’t clear what effect that will have this week.

Franken’s determination to count all the wrongly rejected absentee ballots rests on two ideas, one philosophical, the other political. Counting all valid votes has been the Franken battle cry from the beginning, so even with a lead in hand the campaign has continued to call for including any such ballots in the state’s tally. And with Coleman now almost 50 votes down, any reasonably random pool of ballots (like those wrongly rejected absentee ballots) is statistically unlikely to provide him with enough extra votes to make up the margin.

Meanwhile, U.S. Sen. Klobuchar told the Star Tribune the Senate should seat the man who has more votes after the State Canvassing Board certifies the election — and that man seems likely to be Franken. If Franken does assume his first elective office after a close election, he’d have that in common with Klobuchar. She narrowly won her first race 10 years ago, for Hennepin County Attorney, by a margin of 3,740 votes, avoiding an automatic recount by only three-tenths of a percent, or 1,525 votes.

Franken recount attorney Marc Elias told reporters the campaign would continue reviewing — and if need be, withdrawing — challenged ballots through Dec. 16, when the State Canvassing Board meets to begin a three-day process of tallying the recount. Elias characterized the work of reviewing Franken’s ballot challenges as “trying to narrow the universe.”

Elias expressed concern on three fronts: first, that some unnamed number of counties are refusing to sort rejected absentee ballots as Secretary of State Mark Ritchie instructed. Elias said for now the campaign was hoping the secretary of state’s office could work out any problems with counties that are not yet sorting out a so-called “fifth pile” of absentee ballots that were rejected for a reason other than the four reasons allowed by state law.

Elias said the Franken camp continues to be concerned that so far Minneapolis officials haven’t found 133 lost ballots during the overtime Ritchie granted them after Friday’s recount deadline for counties statewide. He said he took heart, however, from a Ritchie reference over the weekend to what Elias termed longstanding precedent for using the precinct’s existing vote tabulation even if the ballots that would corroborate that count aren’t found.

Elias also devoted several minutes — a significant portion of the 30-minute conference call with reporters from local and national media outlets — asserting that Minneapolis must count 12 other ballots sent from overseas that elections workers discovered while searching for the missing 133 from the city’s now-notorious Precinct 1, Ward 3. He said the city’s own records show there already are 19 such ballots uncounted due to election-judge error and cited precedent in recent days in which officials in Hennepin, Becker, Itasca and Scott counties included legitimately cast ballots discovered after Nov. 4.

But take one statistic from Monday’s recount action — Coleman challenged 35 more ballots than did Franken — and extrapolate it across eight days of a recount that’s now nine-tenths done, and you can show, on paper at least, how Coleman’s ballot-challenge lead could account for his lead in the running tally of overall votes.

The shelf life of such computations, however — like the shelf life of the candidates’ ballot challenges on which they’re based — is limited. There’s a Dec. 5 deadline for counties to complete their recount responsibilities and a Dec. 16 date for the State Canvassing Board to begin aggregating the counties’ handiwork, including the critical task of sorting out the challenged ballots.

In the meantime, the canvassing board may also decide what if anything it will do about examining an estimated 12,000 rejected absentee ballots for legitimate votes that should have been counted.

Most counties are already done with their parts in the state’s recount, but some have yet to start. On Tuesday only Hennepin, Ramsey and Dodge counties will be recounting, according to The Uptake, which closely tracks counties’ efforts. On Wednesday, Rock, Wright, Scott and Winona counties will begin their recounts.

I don’t hear huge debate that this State Canvassing Board wants to take up the question of rejected absentee ballots. At the moment it’s a non-issue. I’m really curious about how people think — let’s say it’s a thousand, let’s say it’s 500 — improperly rejected absentee ballots should get handled. Is it the view of the State Canvassing Board that they should all go to court? And which court could handle that number? Is there another option that is more cost-effective for the citizens and less stressful for the state judicial system?

At a press conference after the meeting (video), Ritchie told reporters that without some action to address the problem, there currently exists only one option for voters who believe their votes were improperly rejected. “At the moment, they have to go to court,” he said. “We can discuss whether that’s a good thing or not.”

I asked the secretary of state what he thought of allowing the responsibility for resolving the problem of wrongly rejected absentee ballots fall to individual voters. ”If there’s a thousand people having to go to court?” Ritchie let his voice drop to a stage whisper. “It’s a bad thing. … If there are 500 to 1,000 [cases], that would be crushing to the judicial system.”

Video of the canvassing board meeting after the jump.

Minnesota State Canvassing Board meeting, Nov. 26, 2008 (via The Uptake)

“We have reason to be optimistic,” recount attorney Marc Elias told reporters at an afternoon press conference. “We are picking up votes across the state.”

The candidate himself — seldom seen locally since recount gears began turning — shared that view, according to communications director Andy Barr. “Al is cautiously optimistic,” Barr said.

Describing the stacks of ballots recounted by hand Wednesday as a “slightly redder” subset of the 2.9 million ballots cast on Election Day, Elias said the campaign believes Franken closed the gap with incumbent Republican Sen. Norm Coleman by more than the secretary of state’s official count of 43 votes.

Elias also claimed to have seen local examples of the same phenomenon in Hennepin, Ramsey and St. Louis counties, where Franken gained on Coleman in recounts of areas where the Nov. 4 election results show the Democrat didn’t run as well as in the remaining (yet unrecounted) precincts in those counties.

Elias said he was relying on internal campaign tallies of the recount’s Day One results, including reports from counties whose results came in too late at night to be part of the state’s official count at 8 p.m. Wednesday.

Elias also said that anecdotal evidence received Wednesday about frivolous challenges has emerged as a pattern. “There are clearly a significant number of instances of challenging clear Franken votes,” he said. “We have seen examples of challengers that clearly are not meritorious and will not be upheld by the Canvassing Board.”

Elias granted that some of the frivolous challenges he alleges could be due to first-day jitterson the part of Coleman workers. He also conceded that Franken’s challengers — who on Wednesday demanded that nearly as many ballots be set aside for Canvassing Board review as did the Coleman challengers — may have also been overzealous. “It’s a very good question,” he said. “It’s part of our review.”

Competing with the recount for the campaign’s attention, Elias said, were the newly arriving lists of voters whose absentee ballots had been rejected by county election officials. That flow of info follows a Ramsey County District Court ruling Wednesday ordering Ramsey Countyto provide any such lists to the Franken camp.

Barr said about three dozen counties had so far followed suit. But the data isn’t uniformly presented, Barr said, so the campaign wasn’t sure what it had yet and wouldn’t state what it plans to do with the lists. On Tuesday, the state Canvassing Board promised to consider whether it would conduct its own review of rejected absentee ballots.

Barr expressed satisfaction that the Coleman camp’s claims of victory were being taken with a grain of salt even in GOP circles. “It’s becoming increasingly clear that national Republicans are beginning to realize that Sen. Coleman has not been determined the winner of the race and are becoming concerned,” he said, noting in particular that some Republicans are already suggestions of other lines of work for Coleman, such as the post of Republican National Committee chairman.