Feb 23 The NRSC's Take on the Coleman-Franken Recount

NRSC Chairman Sen. John Cornyn issued this update to the other GOP senators explaining where the election contest is at:

Dear Colleagues,

I write to update you on Norm Coleman's election contest in Minnesota. Over the recess, there were conflicting media accounts as to both what is happening in the contest and what these events mean for Norm's case. This brief memorandum is meant to clarify any confusion, and to make clear that the bottom line has not changed: if the Minnesota Court fulfills its statutory obligation to certify the candidate with the highest number of legally cast ballots, we are confident that Norm Coleman will be declared the winner.

First, the number of unopened ballots that have never been counted in this race far exceeds the current 225 vote difference between Norm Coleman and Al Franken. Approximately 3,500 rejected absentee ballots remain before the three-judge Minnesota Contest Court.

Second, original/duplicate ballots that were double counted during the recount stage heavily favor Al Franken; it's estimated by over 100 votes. Norm's team has provided direct testimony by Minnesota elections officials that votes were counted twice, and the Minnesota Court has yet to remove the double counted ballots from the recount total.

Third, multiple extraneous ballot issues remain unresolved by the Minnesota Court. For example, election night vote totals were used in the recount where ballots favoring Franken were "lost" (there's no evidence they ever existed), but election night totals were not when ballots favoring Franken were "found" after election night.

Finally, the Minnesota Court has now made clear that the number of illegal votes that are currently included in the vote count exceed the margin of Al Franken's "lead" by hundreds if not thousands. It seems straight common sense that illegal votes cannot be included in a final certified vote total. Yet last week's Friday the 13th ruling by the 3 judge creates exactly that possibility:

The Minnesota Contest Court ruled that 12 categories of ballots were "illegal" under Minnesota law. The problem is that the three judges themselves have previously allowed ballots they now call illegal to be counted. Additionally, this ruling makes thousands of ballots already included in the election night total illegal.

Specifically, the judges' order contradicts their own ruling three days earlier on seven (Franken weighted) ballots that allowed those ballots to be included in the count. Further, this order renders illegal nearly 100 of the 933 (Franken weighted) ballots counted by the Minnesota Canvassing Board during the recount and contradicts a stipulation the Board signed on February 3 that all 933 ballots were legally and properly counted. The Court is refusing to address these blatant inconsistencies despite the fact that they are charged with certifying the number of "legally cast ballots" in this race, a charge that, by their own definition, they are no longer able to keep.

As a former Texas Attorney General and Supreme Court Justice, I find the legal quagmire created by the Friday the 13th ruling, and the Minnesota Court's apparent refusal to address it, particularly troubling. Such widespread inconsistency not only creates state and federal constitutional problems, but saps voters' faith and confidence in the integrity of our election process. In order for the voters of Minnesota, and the members of this body, to have confidence in this contest's outcome the process in Minnesota must be uniform and it must be fair.

I know that you join me in my concern, and support Norm's fight.

Something jumped out at me in this memo. Here's what jumped off the page at me:

Finally, the Minnesota Court has now made clear that the number of illegal votes that are currently included in the vote count exceed the margin of Al Franken's "lead" by hundreds if not thousands.

The February 13th ruling creates a predicament for the courts because they didn't officially take their previous ruling off the books. That means that hundreds of votes that were counted for Franken because of one court ruling should now be removed by virtue of the latest court ruling.

Until now, I've resisted making a prediction because I thought things were too close to call. While I realize that Mr. Franken currently has the lead, it's becoming apparent that that lead is the result of cherrypicking ballots from Franken-friendly precincts. Let's review some important facts.

• The votes from the Franken-friendliest precincts have been added in already.
• The votes from the most pro-Coleman precincts haven't been counted.
• There are approximately 3,500 votes from these Coleman-friendly districts. That's more than enough to overtake Franken.
• Election officials have testified that some votes have been double counted.
• These double-counted votes have been from Franken-friendly precincts.
• If the three-judge panel finds this testimony credible, which I think they will, more ballots will be subtracted from Franken's vote totals than from Sen. Coleman's totals.

As a result of this information, I'm now willing to predict Sen. Coleman's return to the Senate.

Comments welcome at LFR.