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Minnesota 101
There is not much good to say about Franken, but he did not steal the election.


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Everyone understands the ongoing saga involving Minnesota’s 2008 Senate election in broad outline. After leading by more than 700 votes on election night, the incumbent senator — Republican Norm Coleman — has emerged as the probable loser of the three-stage post-election proceedings. Senator Coleman lost nearly 500 votes during the first stage — the canvass — conducted by local officials tabulating votes immediately after the election. At the end of the canvass, Senator Coleman appeared to have won the election by 215 votes out of nearly 3,000,000 cast.

The closeness of the result led to the recount — the second stage of the post-election proceedings. With a margin within one-half of one percent, Minnesota law dictated a hand recount. The required recount is essentially administrative in nature. Minnesota law also provides for a judicial proceeding — the election contest — before a panel of three judges to resolve disputed questions of fact and law following the recount. The election contest is the third stage of Minnesota’s post-election proceedings.

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During the recount Senator Coleman lost his narrow lead to Franken, coming out on the short end of a 225-vote margin. Senator Coleman has challenged the result of the recount in the election contest. The election-contest trial took place over seven weeks. The case is pending before the election-contest panel of three judges, but the result appears foreordained, based on rulings made to date by the panel. In all likelihood, the election-contest panel will declare Al Franken the winner, and Senator Coleman has already vowed to appeal the result to the Minnesota Supreme Court.

What happened?

The erosion of Senator Coleman’s approximately 215-vote lead over Franken after the election canvass, and the emergence of Al Franken with a 225-vote lead over Coleman on January 5 after the recount, have given rise to the implication that Franken stole the election. The January 5 Wall Street Journal editorial “Funny business in Minnesota” is representative of this strain of commentary, which implies that Coleman has been a victim of Democratic shenanigans.

For a while, I thought so, too. If I had observed the events through the media outside Minnesota, I would still think so. As a Minnesotan with a closer view, with friends lodged in every corner of the post-election proceedings, I have a different perspective on the chain of events that has brought Coleman to his imminent loss to Franken.

From the day following the election, the Franken campaign understood it needed to conjure additional votes to prevail — thus the initial “count every vote” mantra that accompanied the litigation it commenced regarding the identification of “wrongly rejected” absentee ballots. The mantra ceased at the moment Franken took the lead, even though about 11,000 absentee ballots remained excluded for noncompliance with state law (about 4,000 of which, Coleman contends on equal-protection grounds, were wrongly rejected).

From the outset of the post-election process, the Coleman campaign was remarkably passive in its approach to the recount. The Coleman team appeared to improvise strategy from day to day and spent time spinning the Franken campaign’s activities. They did not appear to have a handle on what was happening or on what was likely to happen. I found getting information from the Coleman team like pulling teeth. For a while I thought they were withholding information for some reason. By the end of the recount, I concluded that they simply didn’t know what was happening.

Until the conclusion of the recount, Coleman acted a bit like an NFL team sitting on a two-point lead in the closing minutes of the fourth quarter. He could have been much more aggressive in protecting his position in the days after November 5. And to vary the analogy, the attorneys who publicly led Coleman’s team through the recount (local lawyers Fritz Knaak and Tony Trimble) appeared like Pop Warner players going up against an NFL team. When Coleman filed the election contest challenging the result of the recount, he brought in a new lawyer — the respected local criminal-defense attorney Joe Friedberg — to represent him in the election-contest trial. This has not proved a winning formula.

Media coverage of the recount has been so poor that it is difficult to ascertain what happened during the recount. It is particularly difficult to determine what happened when ballots were reviewed and counted by hand around the state. Both Coleman and Franken dispatched teams of observers to raise objections to disputed ballots at the various counting locations. As events were to prove, Franken had an effective team of observers.



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