For the next week elections workers in 86 locations across Minnesota will methodically count and sort roughly 2.2 million ballots, while campaign volunteers, lawyers and other operatives try their hardest to disqualify ballots through a system known as challenges.
For Republicans that battle in the trenches will be all about erasing Democrat Mark Dayton's 8,770 vote lead over Tom Emmer. For Democrats it will be about holding onto Dayton's lead in the machine count.
The hand count will be reflected in new nightly totals on the Secretary of State's website. And it will likely show the gap narrowing because the challenged Dayton ballots won't be reflected in that changing scoreboard.
Those challenged ballots will go to the State Canvassing Board for rulings, and only then will the vote totals matter again. Republicans will have more incentive to challenge ballots, especially because it will create the appearance that Emmer is catching up with Dayton.
It may began to look, in nightly headlines, that Emmer can close the gap and erase the deficit. After all, Al Franken overcame a 215 deficit to Norm Coleman in the 2008 Senate machine count and pulled ahead by 49 votes in the hand recount.
If Emmer then loses that ground during the canvassing board process, an entire new legend of a "stolen election" will be born. Republican National Committee Chairman Michael Steele and the Republican Congressional Campaign Committee both used the "stolen election" message to raise money and get out the vote 2010. I'll have more thoughts on that shortly.
Rules of Engagement
Those challengers will attempt to bounce ballots based on unclear voter intent. They can also be challenged for "over voting," in which someone fills two ovals in the governor's race. The ballot scanning machines generally kick out over votes so the voter will get a second chance, but that feature is often disabled on machines counting absentees. And then there's the "under vote" in which no oval is darkened.
We learned during the 2008 Franken-Coleman Senate recount that the cases of actual ambiguous intent are actually pretty rare, and in those cases it came down to a judgment call by the State Canvassing Board. The overwhelming majority of the 6,600 ballots challenged by the campaigns in that epic struggle were frivolous.
Those challenges were based on "identifying marks" - names, numbers or signatures that identify the voter. If you write your name on your ballot or identify yourself in some other fashion it will be tossed out in a hand recount, due to a law born in the era when people were paid to vote and had to leave marks as proof for the corrupt vote counters.
But in 2008 the campaigns challenged just about every ballot with write-in candidates, based on the bizarre notion that people who wrote in candidates such as "Lulu" and "Mickey Mouse" and "Jesus" and "Flying Spaghetti Monster" were in fact trying to identify themselves.
When Republicans made outrageous challenges the Democrats would match them with equally silly challenges, and vice versa. It became a tit-for-tat game. You issue a bogus challenge, I'll match that with one of my own.
Both sides were fully aware that the media would report nightly totals from the Secretary of State's office, and if the challenges weren't balanced it would appear one side was pulling way ahead of the other. After all, there are 4,136 precincts in the state and it wouldn't take many challenges to create the impression of a trend.
That type of frivolity, for lack of a better term, won't be allowed under a new law dictating ballots can't be challenged based on what's written inside the write-in slot. No matter how ridiculous the name in that write-in slot is, it will be treated as a vote instead of an attempt by the voter to disqualify him or herself by breaking the rules. Ballots may still be challenged for identifying marks if names are written outside the write-in slot.
Secretary of State Mark Ritchie, the only member of the 2010 edition of the canvassing board who also served on the 2008 board, hoped that change in the law would make this recount go more smoothly. He was also banking on a new administrative rule, adopted through a process of publications and hearings, to cut down on other types of ballot disputes.
The new rule gave the "table official" - the local election official - in each county the power to weed out frivolous challenges. But Emmer's lead attorney, Eric Magnuson, asked the board to strip that power from local officials. Magnuson, a former chief justice of the Minn. Supreme Court who served on the 2008 canvassing board, asserted that those challenges should be decided solely by the state board, which is more likely to apply a uniform standard.
The board last week agreed to a compromise. Local table officials can still deem that a challenge is frivolous, but those ballots will go into a "frivolous challenges" pile that can be reviewed by the state board at a later time. That makes six stacks at each table, including: Emmer, Dayton, Other, Emmer Challenges, Dayton Challenges and Frivolous Challenges.
2008 Legend takes hold
So why mount a frivolous challenge? In 2010 Republicans can easily find numerous reasons.
For one that challenge may actually knock out a Dayton ballot. And even if the canvassing board eventually disagrees with the challenge, that vote has been taken off the Dayton scoreboard temporarily. And that "slipping lead" for Dayton makes headlines. Those headlines fuel the legends of stolen elections.
Those Republican fundraising letters stated as fact that Franken's attorneys took away Coleman's victory. In fact Steele's fundraiser included pictures of Franken and the heading, "no more Frankens!" If you get your news from the Wall Street Journal's editorial page and/or FOX you've heard it stated as fact many times since 2008.
A former colleague of mine wrote a couple weeks ago, in reaction to one of my recount stories, to ask, "How could Norm Coleman WIN by 715 votes the night of the election and WIN again by 215 votes when the election is certified and then LOSE after Franken lawyers and the Democratic Sec. of State commandeer the ballots?"
Like many in that camp, she lost track of the fact election night machine totals are always "unofficial" and that the 215-vote "certified" margin was still a machine count. The hand count - different sets of human eyes - found more votes for both Franken and Coleman.
These were votes the machines' eyes missed because of ovals not filled in correctly. That count happened to find 264 more Franken votes than Coleman votes, an average of 2 and a half votes per county. He led after the recount by 49.
That's a real fact that has even escaped Sen. Coleman himself, who implied in an interview on C-SPAN's Newsmakers program Sunday that he won the hand recount.
Answering a question about Joe Miller's loss in Alaska, Coleman said, "When they were all counted on election night I won. When they were recounted I won, but it was the ballots that were not counted on election night that ultimately changed the outcome."
In fact the maneuvers by the expert lawyers from Washington D.C. and Seattle chiefly involved the battle over rejected absentee ballots, which Coleman initially fought against opening and eventually sought to open and count.
That fight over wrongly rejected absentees, though unprecedented in Minnesota, served only to pad Franken's lead to 312 by the end of the election contest trial. The three-judge panel stuck to a strict interpretation of Minnesota's election laws, and the state Supreme Court backed up that ruling.
If you were someone who closely covered the 2008 election, canvassing process, hand recount and subsequent election contest trial and Supreme Court motions you'd be more inclined to see it as a heartbreaking loss for Coleman, but not a case of fraud or theft of a senate seat.
If anything the entire saga should have solidified Minnesota's reputation as the state with the best election laws and the cleanest, most transparent process. If you say that in some crowds, however, you'll be booed and shouted down.
History is generally written by the victors, or so the saying goes. And yet the legend of a stolen election has taken hold for a great many Americans. Al Franken won, but the party with the more effective message machine is convincing people he didn't.
A local TV anchor, who recently moved to the Twin Cities from a national network, conducted a live interview with Secretary of State Mark Ritchie starting with the premise that he presided over a stolen election. She asked how Minnesota could be in another recount situation "after what happened in 2008."
When in doubt, blame Ritchie
Ritchie, a Democrat, has become the punching bag for Republicans who blame him for overseeing a state election system that delivered a tight victory to Al Franken. Instead of celebrating his own solid re-election victory in November, Ritchie is again under attack by the GOP as being too partisan to carry out the duties of his office.
On the morning of Nov. 29th, as the recount was starting, the Republican National Lawyers Association in Washington blasted Ritchie again in a news release entitled, "Voter Fraud Alert." Among the goals expressed was, "We hope this time the Minnesota Secretary of State will follow the law instead of seemingly making his decisions based on the desires of the Democrat candidate's lawyer."
The notion that Ritchie single-handedly tilted the playing field in favor of Franken only works for those who didn't see the recount up close. The canvassing board also included two Republican Supreme Court Justices and two veteran state District Court judges. Everything they did was fully discussed and disclosed in public meetings.
But most people are busy living their lives and can't be bothered with the number of details reporters and political operatives are forced to absorb. If those people are already predisposed to believe that Democrats cheat, it doesn't take much to convince them clever lawyers came here and hijacked our election system.
The fact that Ritchie was endorsed by the community activist group A.C.O.R.N. in the 2006 election has been used by conservatives to further demonize him. ACORN liked Ritchie because he had a track record of supporting voter registration drives.
In logistical terms frivolous challenges also add to the canvassing board's work load, which could stretch out the timetable for reviewing the disputed ballots. Current Gov. Tim Pawlenty will remain in office until the board certifies a final tally.
Tom Emmer has said he'll make up in mind about an appeal after the recount ends. But even an Emmer loss is ripe with political possibilities. As my former colleague put it, "I hope it takes 7 months for Republicans to 'find' enough votes to put Emmer ahead, then we can stop 'counting every vote'."
(Copyright 2010 by KARE. All Rights Reserved.)