Sec. of State urges campaigns to reduce ballot challenges

Canvassing Board
It would take weeks for the Minnesota State Canvassing Board to review each of the 6,000 challenged ballots in the U.S. Senate recount. Elections officials want both candidates to withdraw large numbers of challenges which are considered frivolous under state law.
MPR Photo/Tim Pugmire

Mark Ritchie's office has given the Norm Coleman and Al Franken campaigns until tomorrow evening to withdraw large numbers of the nearly 6,000 ballots they've challenged so far.

Deputy Secretary of State Jim Gelbmann e-mailed the campaigns last week and asked them to de-escalate their challenged-ballot arms race.

Both sides have said they plan to drop some of their challenges. A lawyer for the Franken campaign said he'll withdraw "more than dozens" of challenges. Gelbmann says it needs to be a lot more than dozens.

The Coleman campaign challenged this Franken vote because of an alleged "identifying mark." But the law says the only way a voter can invalidate an entire ballot is if it's "marked in a manner making it evident that the voter intended to identify the ballot," as his or her own. For instance, if you sign your ballot, it's invalid. It would be hard to argue that a stray pen mark constitutes an identifying mark.
Courtesy of Secretary of State

"I was hoping that both campaigns would be looking at withdrawing thousands of challenged ballots," said Gelbmann.

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Minnesota Public Radio News has examined 1,000 of the challenged ballots, and most of the challenges were, indeed, frivolous, as defined by state law.

Close to 700 of them could easily be assigned to either Coleman or Franken, just by following the guidelines set out in Minnesota state law. Another 100 or so wouldn't go to either candidate.

So that left only 200 -- just one-fifth of the ballots we reviewed -- that were really questionable. Those were the ballots where state law didn't offer clear guidance to determine the voter's intent.

Gelbmann sees the same pattern.

"The majority of [the challenges] are frivolous. At least 50 percent -- I would guess it would be closer to 70 or 80 percent -- are frivolous."

"The majority of them are frivolous. At least 50 percent -- I would guess it would be closer to 70 or 80 percent -- are frivolous," said Gelbmann.

For example, the Coleman campaign challenged a ballot from northern Minnesota, because the voter marked some votes with check marks and others with X's.

But state law says that's OK. Your vote still counts, even if you don't fill in the oval -- as long as you put a mark next to a candidate's name. And it says explicitly you don't have to use the same mark on every race.

There are also lots of frivolous challenges related to Minnesota's law against identifying your ballot. You're not allowed to sign your ballot. If you do, it's invalid.

But there are many challenges to ballots that just have a stray pen mark on them, or a glob of ink somewhere, or a even vote for a write-in candidate on some down-ballot race. There's no law against any of that.

Gelbmann says if the campaigns don't significantly reduce the pile of challenged ballots, it will take weeks for the State Canvassing Board to evaluate all of them.

"It's a very painstaking process, and that's why I'm saying it would not work if we continue to have 6,000 challenged ballots," Gelbmann said.

That's because the five-member Canvassing Board has to study each ballot, and then vote on it. If they disagree, they might have to debate for a while -- even ask for arguments from the campaigns.

Gelbmann says previous canvassing boards have average three minutes a ballot. At that rate, even if they worked nonstop, eight hours a day, it would take more than a month to analyze 6,000 ballots.

Gelbmann gave both campaigns until the end of the day Wednesday to tell him which challenges they're willing to withdraw. If they don't, then he'll try to arrange for their lawyers to meet face-to-face.

If the campaigns still can't whittle the mountain down to a managable size, then Gelbmann will ask his staff to find all the frivolous challenges.

That would give the State Canvassing Board members the option to rule on those frivolous challenges as a group. Otherwise they'd have to look at them -- one, by one, by one.