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.

Associate Justice Alan Page

The Minnesota Supreme Court issued an order late Monday morning (pdf) denying an emergency motion from the Norm Coleman campaign to stop the State Canvassing Board from certifying the vote in the statewide Senate recount. That clears the way for the canvassing board to certify this afternoon that Al Franken received the most votes in the Nov. 4 election as determined by the recount that followed.

The order doesn’t rule on the merits of Coleman’s complaints about vote-counting (or Franken’s, for that matter), leaving those to the judges who will hear an expected election contest.

In its order, the court wrote that “the threshold question before us in this motion is whether disputes over rejected absentee ballots can be resolved in this automatic recount proceeding, or whether they must await an election contest proceeding.”

Only “obvious errors in the counting or recording of the votes” that all sides could agree on, the court said, should be fixed in the recount that the canvassing board will certify today. All other disputes belong in a court action called an election contest that either side may file within seven days of certification.

That reasoning goes some way to explain an aspect of the court’s Dec. 18 ruling (pdf) that has since been roundly criticized: a provision allowing the Franken and Coleman campaigns to remove from the recount even those absentee ballots that election officials decide should have been included on Election Day.

“[W]here election officials and the parties agree that an absentee ballot was improperly rejected, correction of that error should not have to await an election contest. We therefore ordered that any absentee ballot envelope that local election officials and the candidates agree was rejected in error should be opened and its ballot counted, subject to challenge by either candidate. In doing so, we implicitly recognized that any agreement among the parties was voluntary and, absent such an agreement, resolution of those disputed ballots would need to await an election contest proceeding.”

The order today carried the signature of Associate Justice Alan Page — who was first in line to criticize the court’s Dec. 18 order with a blistering dissent. As with earlier recount issues, the two members of the court who are currently serving on the State Canvassing Board — Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson — did not take part in considering or deciding the question. All legal filings before the court related to the recount are available online.