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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

December, 2008

Below are postings from December, 2008. (See Archives | Recent Headlines)

MN Senate race: Franken up by 50 votes unofficially

Dec. 30 - The Minnesota state canvassing board met today to review 2 dozen ballots whose allocation on the board’s spreadsheet differed from how the campaigns thought they should have been allocated. The board disposed of these quickly with Coleman gaining two votes and Franken gaining six votes for an unofficial Franken lead of 50 votes. Next, the board will meet on Jan. 5 to determine which wrongly-rejected absentee ballots should be counted. The campaigns are having trouble agreeing on which of these ballots should be counted. Franken wants all 1,346 ballots identified by the counties as wrongly rejected to be counted. The Coleman campaign has agreed to over 700 of these and has asked that an additional 600+ rejected absentee ballots be reviewed again for possible inclusion as well. The Coleman campaign says it suspects that there has been inconsistency across counties in the decisions to include absentee ballots. Regional meetings are planned throughout Minnesota for the counties and the campaigns to attempt to come to agreement on which absentee ballots ought to be included in the state canvass.

Minnesota local officials identify 1,350 wrongly rejected absentee ballots

Dec. 29 - Minnesota's local election officials have identified 1,350 absentee ballots that were initially wrongly rejected.  The campaigns must now review the list and come to agreement on which ones should be counted.  The Franken campaign has said it will accept all of the ballots and will not add any more to the list.  The Coleman campaign has said it will review the list as is their duty under the Minnesota Supreme Court's order.  That order, here on our case page, requires county officials to send all of the ballots that they deem wrongly rejected to the Secretary of State by Jan. 2 to be opened andcounted.  The Secretary's staff will count those that the campaigns agree should be counted and send a report of the vote totals to the state canvassing board.  These ballots are not expected to reverse Franken's lead from the administrative recount.  However, an election contest based on some election irregularity will likely be filed by the Coleman campaign.  See our Minnesota Senate race page here and the latest from the Star Tribune here

MN Supreme Court rules against Coleman

Dec. 26 - The Minnesota Supreme Court denied Coleman the relief he was seeking regarding damaged originals and unmatched duplicates. The justices found that the state canvassing board did not act in error by denying such challenges and that the Coleman campaign's claim of double-counted ballots would be better resolved in a court hearing where evidence can be presented.  The order will make it very difficult for Coleman to overcome Franken's lead in the adminstrative recount.  The Coleman campaign plans to take the duplicate ballot issue to court which practically guarantees that the seat will go unfilled when the Senate resumes Jan. 6.  See the Star Tribune coverage here.  See the Court's order here on our case page

MN Supreme Court Modifies Order

Dec. 24 - The Minnesota Supreme Court has modified its 12/18 order in Coleman v. Ritchie, as requested by the parties, to "adopt a revised procedure for opening and counting of absentee ballots that it is agreed were erroneously rejected to better preserve the secrecy of the votes contained therein."  The new order also extends the deadline for the reporting of the revised vote totals.  [Read the Order]. 

MN Senate race - withdrawn challenges will be allocated today

Dec. 23 - The challenges withdrawn by both campaigns will be allocated today.  A draft list of these allocations has Franken ahead unofficially by 48 votes.  Some decisions may be challenged today at the board's meeting.  That meeting begins at 9 a.m.  See the latest from the Star Tribune here.  At 2 p.m. CT today, the Minnesota Supreme Court will hear oral argument over the original/duplicates issue.  The Coleman campaign believes some ballots have been counted twice when originals and their machine-readable duplicates have accidentally come uncoupled. 

MN Senate race - board recesses while ballots are pulled

Dec. 23 - This morning, the Coleman campaign told the board that there are 16 ballots it would like the board to reconsider because it believes inconsistent decisions were made as to how to allocate those ballots.  The board is in recess for one hour while the Secretary’s staff pulls the 16 ballots as well as 24 ballots that will serve as examples of other rulings that do not appear to have followed the same guidelines. In the discussion leading to this decision, the board made it clear that they are reluctant to reconsider their prior decisions but think it is important to look at the Coleman campaign's concerns to further assure the campaigns and the public that they are making the right decision.  Two of the board members suggested that what was apparent to them in reviewing the original ballots is likely not discernible in the photocopies that the campaigns reviewed.  If the board does decide to reconsider any of the challenge decisions on these 16 ballots brought forward by the Coleman campaign, the Franken campaign will then have a chance to make a list of ballots for reconsideration before the board’s Dec. 30 meeting.

MN Senate race - Canvassing board meets again Dec. 30

Dec. 23 - The canvassing board met today to reveal the allocation of the withdrawn challenges and to resolve clerical mix-ups with a couple of the challenges from last week.  The board also heard from the Coleman campaign about some ballot challenge decisions that the campaign thought were inconsistent with other challenge decisions.  The board recessed for an hour while 16 ballot originals were pulled and, when it reconvened, it decided not to reconsider any of them.  The members explained that they were comfortable with their original decisions while acknowledging that valid counter-arguments exist.  One member, Judge Cleary, moved to reconsider two of the ballots but no one seconded his motions.  He too expressed confidence in the fairness of the board's process and decisions.  Presently, Franken leads unofficially by 48 votes but the Secretary is still reconciling his spreadsheet with those of the campaigns.  See the latest from The Star Tribune here.  The board will meet again on Dec. 30 at 9 a.m.

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

Dec. 23 - 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.

MN S.Ct. to hear

Dec. 20 - The court has allocated one hour of oral argument on how to handle Coleman's claim that approx. 150 ballots have been double-counted as a result of administrative errors in keeping track of damaged originals and the corresponding duplicates made for them.  Briefs from the government and the Franken campaign are due Monday at 9am, with Coleman having the right to reply within 4 hours.  EL@M will post them here when available, where the court's scheduling order is also listed.  (Please note: a previous post on this site erroneously referred to a "proposed order" submitted by the Coleman campaign as if it were an actual order of the court.  That post has been deleted and replaced by this one.  The court has not granted Coleman's proposed order, but has thus far only issued its scheduling order.)

MN Canvassing Board update

Dec. 19 - The canvassing board is meeting for the 4th day to dispose of the remaining Coleman challenges.  There may only be just over 100 ballots left to review and the board is moving through them quickly.  Franken is up by 190 votes among the reviewed challenges but the withdrawn challenges have not been officially adjudicated; the board will deal with these on Monday at 9 a.m.  The board has not updated the running totals for each candidate declaring that it is not interested in the "horse race" and wants to focus on each ballot that comes before it.  That has probably contributed to the disparity among news reports on the number of ballots left to review and the candidates' totals.  See the latest from the Star Tribune here.

Minnesota Supreme Court order on absentee ballots - brief analysis

Dec. 19 - The Supreme Court issued a 3-2 decision requiring election officials and both campaigns to agree on a uniform counting standard and allowing only those absentee ballots that both candidates agree were improperly rejected based on the agreed-upon standard to be counted and included in the recount. Presumably, those absentee ballots whose validity the campaigns cannot agree on would be the subject of one or more election contests. Minnesota law explicitly provides for correction of obvious errors by county officials where the two candidates agree in writing to the correction. See 204C.38. However, the Court found that 204C.38 and 204C.39, both sections on correction of obvious errors, did not apply. Rather, its decision was based on 204B.44 which allows any individual to petition the Supreme Court to order counties to correct any wrongful act, omission, or error (or show cause for not doing so) by an election official in a state or federal election. See the Supreme Court’s order here on our Coleman v. Ritchie case page. Two justices wrote in dissent. Justice Page’s dissent alleges that the majority’s decision will create the kind of equal protection problem it seeks to avoid by treating valid, legally cast ballots differently based on the arbitrary agreement of candidates and officials. It should be noted that 204B.44 does not require this particular manner of relief. The statute directs the court to order “appropriate relief”.

Coleman files another case in Minnesota's Supreme Court

Dec. 19 - The Coleman campaign has filed another 204B.44 petition in the Minnesota Supreme Court asking the court to order that "originals" not be included in the canvass if corresponding "duplicates" do not exist.  More details will be posted soon.  See the petition here

MN Senate race - board concludes today's meeting

Dec. 19 - The state canvassing board has concluded its 4th meeting day.  Secretary Ritchie said in the post-meeting press conference that almost all of the challenged ballots in need of review have been disposed of by the board.  Next week, a few more challenged ballots might pop up that could have been overlooked this week as staff tried to reconcile withdrawn challenges with those still needing review.  The board will meet on Monday at 9 a.m. CT to reveal how the withdrawn challenges have been adjudicated.  After that, the counties have until Dec. 31 to submit amended returns to the state board that include corrections with respect to the originals/duplicates issue and the addition of absentee ballots that the campaigns agree to count.  Final results may not be certified until these amended returns are submitted and reviewed by the board. 

MN Canvassing Board decides on the Lizard People ballot

Dec. 18 - The canvassing board was finally faced with the "Lizard People" ballot that has received much attention in the press.  The voter wrote in "Lizard People" on the write-in line in the Senate race without filling in the oval next to the line.  He also filled in the oval for Franken in the same race.  The voter wrote in Lizard People for other races as well.  The board decided that this was an overvote.  There was some discussion about whether the write-in was a political statement or was a reference to a person.  The board members ultimately decided that Lizard People could refer to an actual person.  The board previously reviewed a similar ballot where a voter had filled in the oval for Franken and had written in Jesse Ventura, a known real person, without filling in the oval next the write-in line.  The board determined it to be an overvote.

MN Canvassing Board update

Dec. 18 - The canvassing board continues to move, mostly smoothly, through the remaining challenged ballots.  Coleman withdrew 400 more ballot challenges today leaving 800 challenges.  The board decided to move through the withdrawn challenges in the regular course of reviewing the remaining challenges rather than stop the proceedings and remove the withdrawn challenges from the board members' books of photocopies and from the images being shown in the meeting room.  Several websites are keeping a running tally of votes gained by each candidate during the challenge review.  However, what is not known is how the withdrawn challenges have been adjudicated.  Of the 5,415 withdrawn challenges, Coleman has withdrawn roughly 2,575 and Franken has withdrawn roughly 2,840.  In other words, Franken has withdrawn 265 more challenges than Coleman.  If most of the withdrawn challenges are allocated to the withdrawing candidate's opponent, then Coleman is likely to gain votes from the pool of withdrawn challenges. 

MN Supreme Court issues decision on absentee ballots

Dec. 18 - The Supreme Court issued an order allowing only those absentee ballots that both parties agree were improperly rejected to be counted and included in the recount.  Presumably, those absentee ballots whose validity the campaigns cannot agree on would be the subject of one or more election contests.  Minnesota law explicitly provides for correction of obvious errors by county officials where the two candidates agree in writing to the correction.  See the order here on our Coleman v. Ritchie case page.

MN Senate race - Franken sues county seeking counting of misplaced absentees

Dec. 17 - Al Franken is suing Olmstead County seeking to make them count 27 absentee ballots that were never rejected but were accidentally placed in the rejected pile.  The campaign claims that these ballots are not the same kind of ballots at issue in Coleman's Supreme Court case because these were accepted and then physically placed in the wrong pile.  The county planned to send them to the state for a decision.  See the Pioneer Press story here.  See the case page here.

MN Senate race - Supreme Court hearing concluded, canvassing board continuing to wade through challenged ballots

Dec. 17 - The Minnesota Supreme Court heard oral arguments today in Coleman v. Ritchie.  Coleman's attorney argued that an election contest is the proper circumstance for revisiting rejected absentee ballots and correcting wrongful rejections.  The justices questioned this process appearing to recognize that a court proceeding could be viewed as an extreme way to correct obvious errors.  The justices also questioned the attorneys about what kind of errors exist and what is meant by obvious error.  They questioned respondent's counsel about the plain meaning of the statute governing correcting obvious erros with counsel arguing that the plain meaning does not preclude correction of the kind of errors counties are finding.  Coleman's attorney appeared to concede that there are some rejected absentee ballots that fall into the obvious error category but contend that there are rejected ballots where an error is not so obvious.  Meanwhile, the canvassing board continues to review challenged ballots.  So far, of the ballots challenged by Franken, 194 have been allocated to Coleman, 51 to Franken, and 99 to the "Other" category.  Most of the challenges are disposed of quickly and almost all decisions are unanimous.  One ballot that came before the board this morning was a primary ballot that was apparently given to a voter by mistake.  The voter cast a vote for Coleman but Franken was not on the ballot.  The board unanimously decided that the ballot fell into the "Other" category.

MN Senate race - Canvassing board finishes reviewing Franken's challenges

Dec. 17 - The canvassing board has finished reviewing the Franken campaign's challenges.  Of 414 ballots reviewed, 233 were allocated to Coleman, 64 to Franken and 117 to the Other category.  The board is taking a break and will begin to review Coleman's challenges when it returns.  The Coleman campaign indicated that it may reinstate some of its the challenges it withdrew after seeing how the board decided some of the Franken campaign's challenges.  Watch the canvassing board's meeting here.

MN Senate race: 12/16 update

Dec. 16 - Coleman is ahead by 188 votes heading into today's meeting of the canvassing board.  The board will begin reviewing the challenged ballots today with the goal of finishing by Dec. 19.  Franken challenged 436 ballots and Coleman challenged just under 1,000 ballots.  Secretary Ritchie postponed the meeting, originally schedule for 9 a.m., until noon to allow Coleman more time to withdraw ballots.  See the Star Tribune coverage here.  The Minnesota Supreme Court has scheduled a hearing in Coleman's suit against Ritchie for tomorrow.   See the case page here.  Responses from Ritchie, the Franken campaign, and any county officials are due in today at 12:00 CT.  Chief Justice Eric Magnuson and Justice G. Barry Anderson sit on the state canvassing board and are not hearing this case. 

MN Senate Race: Complaint available for Coleman's suit

Dec. 15 - The Coleman campaign is suing to stop the sorting and counting of absentee ballots by the counties until further court order.  The campaign also asks the Court to order that no rejected absentee ballots be included in the results of the administrative recount.  Alternatively, in the event the Court allows rejected absentee ballots to be sorted and counted, the Coleman campaign wants both campaigns to be allowed to challenge ballots and votes in the senate race.  Additionally, the campaign seeks to have these ballots and envelopes segregated and preserved in such a way that individual ballots can be identified.  See the complaint here.

Motion Filed to Enjoin Ohio Supreme Court Order

Dec. 15 - The plaintiffs in NEOCH filed a motion on Friday (12/12) in federal court to enjoin the Ohio Supreme Court's Order in Skaggs to the extent that the Supreme Court's Order "requires the Franklin County Board of Elections to reject provisional ballots that have a printed name but no signature."  The motion further asks that Secretary of State Jennifer Brunner be ordered to rescind Directive 2008-118, which was issued pursuant to the Supreme Court's Order in Skaggs.

Minnesota Canvassing Board meeting now

Dec. 12 - The Minnesota Canvassing Board is meeting now. They first discussed the challenged ballots and encouraged the campaigns to make their job easier by only making serious challenges. They then moved on to discussing the 133 missing ballots from Minneapolis. Cindy Reichert, Director of Elections in Minneapolis, is speaking now. EL@M has the Franken campaign’s brief regarding the missing ballots posted here on our canvassing board page. The board will also discuss the mistakenly rejected absentee ballots. The attorney general gave an opinion to the board that has just been released to the public. The opinion says there is authority in case law for including the missing ballots. The canvassing board has just unanimously passed a motion to accept the election night machine totals from the Minneapolis precinct where the ballots went missing. The meeting is now moving on to the question of the “fifth pile” of wrongly rejected absentee ballots. The attorney general recommends counting these ballots if both campaigns sign on to that decision.

Minnesota Canvassing Board - summary of 12/12/08 meeting

Dec. 12 - The Minnesota Canvassing Board met today. They first discussed the large number of ballots challenged by the campaigns that they are to review next week. The board unanimously encouraged the campaigns to continue withdrawing frivolous challenges. Franken's campaign is expected to withdraw 750 more ballot challenges today.  The board then moved on to discussing the 133 missing ballots from Minneapolis. Cindy Reichert, Director of Elections in Minneapolis, spoke about her belief that the ballots were legitimately cast and counted and the canvassing board unanimously passed a resolution to accept the election night machine totals from the Minneapolis precinct where the ballots went missing. The board next discussed the question of how to handle absentee ballots that have allegedly been wrongly or mistakenly rejected by county canvassing boards. After discussion in which board members emphasized that they had no authority to force counties to sort their absentee ballots and count those that were wrongly rejected on the first try, the board concluded that nothing in Minnesota law prohibits them from requesting that counties identify and count any wrongly rejected absentee ballots. The board also concluded that nothing in Minnesota law prohibits them from accepting amended returns from the counties but they did not go so far as to move to accept such returns at this point. The board did unanimously decide to recommend to the counties that county officials identify and count any wrongly rejected absentee ballots. Questions remain about what can and will be done with such amended returns. Last week, one county official, Joe Mansky of Ramsey County, told a reporter that he would not count 32 mistakenly rejected ballots without a court order. He believes the law requires such an order. EL@M will be monitoring any new actions by the counties and the campaigns in light of the canvassing board's unanimous resolutions today.

Minnesota Supreme Court to hear case on absentee ballots

Dec. 12 - The Coleman campaign seeks to stop the counting of any rejected absentee ballots claiming that counties need a consistent statewide set of rules on how to define and count rejected absentee ballots.  The campaign contends that there has been inconsistent application of the rules.  Two members of the court are on the canvassing board.  See the Star Tribune coverage here.  It is not clear if the case has been filed yet but no documents are available yet online.  EL@M will track the case when the documents become available. 

MN Senate Race: Coleman asks for uniform standard for including absentee ballots

Dec. 12 - The Coleman campaign has sent letters to the Minnesota Canvassing Board and all of the state's county election officials expressing concerns about non-uniform application of the statute governing rejection and inclusion of absentee ballots.  The letter to the state board cites the example of Scott County rejecting ballots where the city is missing from the witness' address while Dakota County is placing such ballots in the "fifth pile".  The campaign asks the counties not to meet without notifying the campaigns and asks that the campaigns be given the opportunity to challenge the inclusion of a ballot and the decision on how a ballot is cast if it is opened.  See the letters as well as the Attorney General's advice to the state board on counting such ballots that were initally rejected here.

MN Senate Race: 12/11 Update

Dec. 11 - The Star Tribune has this article questioning whether the rule of law trumps the right to vote.  It reports that Minneapolis has foud 171 wrongly rejected absentee ballots while Dakota County has found 110.  Other counties are also reporting small numbers of wrongly rejected absentee ballots which, taken together, could be the deciding votes in the race if they ultimately are counted.  In addition, Minneapolis discovered a package of 12 absentee ballots, likely from overseas military voters, that were never counted or rejected.  See the report here.  No action has yet been taken with respect to these ballots.  The state canvassing board meets tomorrow to discuss whether to include wrongly rejected absentee ballots in the recount results.  The Franken campaign has put out a video in which voters whose absentee ballots were mistakenly rejected speak about the experience. 

If the Minnesota Recount Involved a Presidential Race…

Dec. 9 - Happy Safe Harbor Day. No, it’s not to celebrate measures to secure seaports against terrorist threats, although that’s certainly a worthwhile goal.

Instead, it’s the day that Congress has set for states to resolve all controversies concerning the counting of votes for President, if the states wish their resolution to be binding when Congress meets to declare officially the election’s winner.

Eight years ago, it was the day that the U.S. Supreme Court ended the Florida recount in Bush v. Gore. Under the Electoral Count Act of 1887, which Congress passed in the wake of the disputed Hayes-Tilden election of 1876, Safe Harbor Day is always the fifth Tuesday after Election Day, and six days before the Electoral College meets in each state.

MN Senate Race: 12/8 Update

Dec. 8 - Survey USA has a new survey out of Minnesota voters.  Sixty-one percent approve of Secretary of State Mark Ritchie's handling of the recount while only 26% disapprove.  Fifty-eight percent think the recount process has been fair to both candidates but 60% want rejected absentee ballots to be reviewed.  Secretary Ritchie ordered counties to review their rejected absentee ballots to see if any were wrongly rejected.  Local officials are doing that this week and the state canvassing board may make a decision affecting those ballots by Friday.  See the Star Tribune coverage here.  Coleman officially leads by 192 votes according to the Star Tribune's recount page but, some missing ballots in Minneapolis are not yet accounted for and the ballots challenged by both campaigns during the recount have not yet been evaluated by the state canvassing board. 

OH-15 race resolved, Kilroy wins and no recount triggered

Dec. 7 - Ohio's 15th district congressional race has finally been decided.  Mary Jo Kilroy defeated Steve Stivers by 2,311 votes.  An automatic recount would have been triggered had the margin been around 1,600 votes.  Resolution of this race was help up by a challenge by Stivers supporters to about 1,000 provisional ballots.  The Ohio Supreme Court decided Friday that these votes were invalid.  Ohio law requires that a determination be made as to the validity of all of the provisional ballots before any are counted.  That is why the 26,000 other provisional ballots could not be counted until the suit was resolved.  Kilroy faced an even longer delay two years ago in her race against incumbent Deborah Pryce who will retire at the end of her term.  See the Dispatch coverage here.

MN Senate Race: 12/5 Update

Dec. 5 - WIth the recount nearly completed, Franken now trails Coleman in the administrative recount by 251 votes.  Coleman's campaign has challenged 114 more votes than the Franken campaign according to the Star Tribune recount page here.  About 133 votes are missing from a Minneapolis precinct.  A search is being conducted for them now.  See the latest report here.  It's not clear yet whether any of the rejected absentee ballots have been found to be valid and if they will be included in an amended initial count or the recount.  Resolution of this race appears far from over. 

More on the Ohio Election Summit

Dec. 5 - Steve Hoffman, Akron Beacon Journal writer and panelist in Tuesday's summit, has this editorial.  He specifically mentions the difference in provisional voting rates between Ohio and Missouri and the perception that Ohio's high rate makes it more prone to litigation in the weeks preceding and following election day.  Ohio had a provisional voting rate this year of approximately 3.2% while Missouri's rate was 0.2%.  Part of the difference could be accounted for by the fact that Missouri doesn't allow provisional ballots to be used on election day to change the voter's address.  Address changes in Missouri have to be made prior to election day.  In Ohio, provisional ballots have been used since the early 90's--long before HAVA--to allow voters to change their address on election day, but it is unclear what proportion of today's provisional voters fall into this category.  Many panelists and commenters pressed for meaningful data to be gathered and reported by Ohio officials so that all interested parties can base their election policy debate on sound facts instead of emotions and anecdotes.  While the use of provisional ballots to change an address is seen by some as an accomodation to voters, these provisional ballots can get caught up in unforeseen disputes such as whether the formal requirements for completing the ballot envelope have been satisfied.  Voters can get tripped up by choosing to take advantage of a voting option that they may not realize will decrease the likelihood of their ballot being counted.  EL@M has been monitoring progress in the lawsuit over ballot envelope formalities in Ohio's Franklin County.  See the Skaggs case page here.  The Ohio Supreme Court has not yet issued a decision.

Ohio Supreme Court to Franklin County - do not count disputed provisional ballots

Dec. 5 - The Ohio Supreme Court decided that Secretary of State Jennifer Brunner acted unreasonably in instructing the counties to count provisional ballots without both name and signature and those with name and/or signature in the wrong place on the form.  See opinion, MPC case page.

Summary of today's Ohio Supreme Court decision on provisional ballots

Dec. 5 - Provisional ballots are likely to be counted by tomorrow evening and the outcome of the 15th congressional district race between Steve Stivers and Mary Jo Kilroy may be known by then. Theirs is the last congressional race in the country to have no initial winner declared. An automatic recount is likely to be triggered. See the Dispatch coverage here.  See opinion, MPC case page.

Six of the seven justices participated in the decision and all agreed that the majority of the ballots should not be counted while Justice Lanzinger was joined by Justice Pfeifer in her opinion that the 30 provisional ballots with name but no signature could have been counted. The Court treated each of the three groups of ballots separately in its opinion. The three groups of ballots and the reasons they were deemed ineligible for counting are:

1) ballots with name but no signature; ineligible for counting because, despite consistent instructions, the secretary’s interpretation of the law was unreasonable;

2) ballots with signature but no printed name; ineligible for counting because the secretary’s instructions to only one county post-election failed to ensure uniformity in counting provisional ballots and;

3) ballots with name and/or signature in the wrong place on the ballot envelope; ineligible for counting because, despite consistent instructions, the secretary’s interpretation of the law was unreasonable.

Follow the link to continue reading the summary of the Court’s opinion…

MN Senate Race: 12/3 Update - Ritchie orders absentees to be reviewed by local officials

Dec. 3 - Secretary of State Mark Ritchie has ordered local election officials to review roughly 12,000 absentee ballots to be sure they were rejected for the four allowable reasons to reject absentee ballots under Minnesota law.  See the report here.  An absentee ballot may be rejected if it lacks any of the following: (1) the voter's name in substantially the same form as on the ballot application, (2) a signed federal oath prescribed by HAVA, or (3) the same identification number as the voter submitted on the ballot application, if the voter has such an ID number.  The fourth reason that a ballot may be rejected is if the voter has already voted at that election, either in person or by absentee ballot.  Ritchie told officials to make a "fifth pile" of absentee ballots that may have been wrongly rejected but not to count them yet.  Franken gained 37 votes from a cache of 171 ballots in Ramsey County that were found to have not been counted on election day due to machine and human error.  Coleman leads Franken in the administrative recount by 303 votes and has challenged 3,093 ballots while Franken has challenged 2,910 ballots according to the Star Tribune's recount page here.  The Franken campaign claims to be down by only about 50 votes according to the decisions made by election judges at the recount tables before any challenges are taken into account.  Their assumption is that most of these calls will be affirmed by the canvassing board when they meet to review challenged ballots.  See the report here.  With Republican Saxby Chambliss' win yesterday in Georgia's Senate runoff election, the Senate race in Minnesota will remain intense but will no longer decide whether the Democrats will have a filibuster-proof majority in the Senate. 

Ohio Election Summit starts to evaluate the 2008 election

Dec. 3 - Several of us from the Election Law @ Moritz team attended the Ohio Election Summit yesterday hosted by Secretary of State Jennifer Brunner. EL@M Director, Edward B. Foley, was a panelist for the segment on provisional voting and voter ID and Assistant Director, Daniel Tokaji, spoke on early and absentee voting. The other panels focused on various topics such as election administration and voting security. The Summit brought together local and state election administrators, poll workers, county commissioners, journalists, academics, election and voter advocates, bloggers and members of the public. Having a conference with such a diverse group of attendees brought to light a lot of the concerns of these groups and showed where the tensions among them lie. For example, while advocates push for changes in areas such as voter ID and voting machines, local officials have the burden of having to train poll workers on these changes and county commissioners have to find funding within tight budgets. Many panelists emphasized the need to be cautious and deliberative in making changes to Ohio election laws as the code is very complex and seemingly minor changes could have unforeseen consequences to administrators and voters. EAC Commissioner Gracia Hillman attended and praised Secretary Brunner for “striking while the iron is hot” in having the summit within a month of the closely-watched election. See the Columbus Dispatch coverage here.

OH-15: Parties file briefs in Skaggs

Dec. 1 - Both parties have filed briefs in Ohio's Supreme Court in State ex rel. Skaggs v. Brunner.  They can be accessed from our case page.  It is not yet clear when a decision can be expected.  No matter the outcome, the race is sure to be undecided for weeks as an automatci recount will likely be triggered once he initial vote count is certified.  


Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

more commentary...

In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

more EL@M in the news...

Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

more info & analysis...