Posted: December 23, 2008

MN Supreme Court hears oral arguments over original/duplicate ballot issue

The Minnesota Supreme Court just heard oral arguments from the Coleman campaign and from respondents the Franken campaign, Hennepin County, the city of Minneapolis, and the Secretary of State. The suit was brought by Coleman who alleges that double-counting of votes may happen as a result of the state canvassing board’s decision to reject all challenges based on original/duplicate issues. The Coleman campaign alleges that during the recount, in 25 precincts, originals were counted when there was no corresponding duplicate ballot found. The Coleman campaign suggests that this took place because duplicate ballots came uncoupled from their originals or were not properly marked as duplicates.  Further, the campaign alleges these duplicates were counted in the recount in addition to the originals resulting in double-counting of some ballots. Comparing the number of voters with the number of ballots was apparently not part of the recount process so it is unclear to many whether the Coleman campaign’s assertion that this only happened in 25 precincts is correct. The Coleman campaign is asking the court to stop the state canvassing board from certifying the vote totals before the counties can amend their returns with corrections of any double-counting that may have taken place. The Franken campaign argues that having more originals than duplicates could have happened without double-counting. For example, it suggests that election judges could have set aside an original and never gotten around to creating the duplicate. The Franken campaign’s main argument is that there is a genuine issue of material fact—whether double-counting took place and where—that must be resolved in an election contest suit. The justices asked questions about what makes this situation different than the absentee ballot situation that the Court ruled on last week, i.e. why is this obvious error that must be corrected when the campaign argued last week that reviewing rejected absentee ballots was not a matter of obvious error. Coleman’s attorney said that this issue has to do with counting and recording ballots while reviewing rejected absentee ballots did not. The justices repeatedly asked Coleman's attorney what evidence the campaign has shown the Court to meet their burden of proof establishing their right to the requested relief and why this issue was not best left to an election contest suit. Coleman’s attorney responded that an election contest ought to be avoided when it can and cited Reynolds proposition that a voter can be disenfranchised by the inclusion of invalid votes in an election.