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Why Al Franken Will be Minnesota's Next Senator

For many reasons, all listed here, when the final votes are tallied and likely litigation ends in Minnesota, Al Franken will be a U.S. Senator.
 
 
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No one should be surprised if Democrat Al Franken is elected to the U.S. Senate in the Minnesota vote count or canvass, which is not completed until Nov. 18, and that a statewide hand recount, an election contest in Minnesota courts, and the United States Senate will all confirm this result.

Here's why. Minnesota only uses paper ballots, no punch cards and no touch screen. There is a complete paper trail. Most of the ballots are counted in their precincts by optical scanners. Some rural counties use a large machine to count in the clerk's office after the polls close. In both precinct and central counting, the machine reads only marked ovals, but the test audits during the canvass (and the subsequent recount) are by hand and include all discernable marks and a recount is mandatory for close races.

Minnesota's system is pretty close to the ideal. The precinct counter warns voters if it reads more than one vote for a single office (known as an overvote). This is usually human error, and the voter has a chance to correct it (or to choose to reinsert his or her ballot, in which case the machine will count the unaffected races). In some areas, precinct scanners also warn voters if they fail to vote for every office, but most Minnesota counties do not use this setting. Because it allows voters to correct many human errors, the precinct counters are more reliable than paper alone.

There is also a strong tradition in Minnesota that every vote counts. Any discernable mark is counted as evidence of voter intent. Minnesota courts don't blame voters if election officials made a mistake in keeping the ballots in less than ideally secure locations; they require evidence of actual fraud. And Minnesota ballots are pretty straightforward, on a single page without the design flaws that confused so many voters in the 2006 congressional election in Sarasota, Fla. There were thousands of undervotes in that close contest, mostly from Democratic-majority areas.

The largest source of error is going to be human error -- marks that the machine cannot be expected to recognize. The voter crosses out one oval and fills in another. The machine sees an overvote, but the hand canvass counts the vote correctly. When the voter circles the candidate, or uses a check mark, or doesn't fill in the entire oval, the machine sees no vote at all, but again, the hand canvass registers the vote.

Since 2000, seven out of seven peer-reviewed academic studies confirm that Democrats tend to make more mistakes than Republicans. The populations that are, in academic jargon, "vulnerable to error" are low-income, low-educated and minority, all of which disproportionately vote Democratic.

Press reports from Minnesota emphasize that there were 24,100 more votes for president than for senator in last week’s election, and note that these come from "Obama counties." Further analysis will likely show that most come from Democratic precincts. This is consistent with the fact that low-income and minority voters tend to live in the same areas.

This is not the correct way to measure the unintentional undervote. The undervote is larger than the dropoff between president and senator, since some voters may not have votes counted for either office. When the Senate vote is subtracted from the total number of ballots cast, the undervote rises to 34,916. One analysis looks at this undervote by precinct and then allocates it between Norm Coleman and Franken according to the precinct vote, resulting in a net Franken gain of 1,769.

But that overestimates the error, because the vast majority of the undervote is an intentional abstention from the Senate race. Here, historical data is no guide, since how many voters deliberately abstain depends on the particular race. But the last polls before Election Day showed an unusually low percentage of undecided, most of them liberals, so the level of abstentions should also be low. If just 8 percent of the undervote results from defective marks, Franken moves ahead.

Next, there is machine error -- the machine fails to read a clear mark. The dominant machine, ES&S Model 100, may be the most reliable optical scanner, but Ramsey County's director of elections claims it has an error rate of 0.2 percent. (St. Paul is in Ramsey County.) This can result from jamming, which more frequently occurs on heavily used machines in urban areas, so the hand count can be expected again to yield a disproportionate number of additional votes for Franken. At this rate, there will be 4,900 additional votes, which could result in a net gain for Franken of 268 votes in the five most populous counties alone.

Minnesota has almost no provisional ballots, because voters can register or reregister on Election Day. However, absentee ballots are subject to a signature match before they are removed from the security envelope. Franken's attorneys are disputing the decision of the canvassing board in Hennepin County, which includes Minneapolis, to exclude 461 absentees, largely due to apparent signature mismatches. If some of these voters authenticate their signatures, the state canvassing board will almost certainly count them. The party ID of these voters is known, so it is highly likely that the great majority voted for Franken.

For all these reasons, Coleman faces long odds in holding on to his lead, which had shrunk to 206 by last Friday evening. The Coleman campaign is acutely aware of its predicament and is desperately looking for new ways to cloud the election result. Gov. Tim Pawlenty speaks vaguely about "strange things happening in the context of this recount." One rural precinct called in preliminary results, and a transcription error left out exactly 100 votes. Of course, the paper ballots eliminate any reasonable basis for the suspicion of fraud, published by Fox News. Several precincts had verification tape with a time stamp before Election Day, but the explanation that the officials forgot to check the system clock is obviously correct, because the voters witnessed their own scanning of the ballots on Election Day.

The courts have already rejected a claim that Hennepin County cannot count absentee ballots because they were accidentally left in an election official's car. Republicans are criticizing St. Louis County (where Duluth is), another Franken stronghold, because the county stores its ballots in the courthouse attic. But that just happens to be the location of a secure room to which the county auditor and chief election official have the only two keys.

Coleman's campaign has persuaded Associated Press that "ballot security could be an issue in the recount." Again, Minnesota law is unambiguously to the contrary. Absent concrete evidence of fraud or bribery, every vote will count, even if the election officials commit errors.

There are many steps to a certified election result in Minnesota and each, to Franken's benefit, reinforces the principle that every discernable vote will count. Mandatory sampling audits will continue to yield corrections until the state canvassing board meets on Nov. 18. The board, comprised of Democratic Secretary of State Mark Ritchie and four state judges (yet to be named) will adjudicate the Hennepin County absentee ballots. The next day the full hand recount will begin. Once the state canvassing board determines a result, the losing candidate will most probably file an "election contest" in the state Supreme Court.

In 1962, the Supreme Court overturned the state canvassing board, which found that Democrat Karl Rolvaag had 58 more votes for governor than the Republican candidate, finding tabulation errors in five counties. The Supreme Court also counted 31 absentee ballots, despite evidence that they had been improperly handled. The rule the court announced is clear: "The object of all election procedural laws is to ascertain the true vote of the people and to declare elected the candidate who receives the most legal votes in a legal election. Absent fraud, bad faith, or jurisdictional defects, technical irregularities in the procedure followed in obtaining the correct result will frequently be overlooked in order to give effect to the true vote of the people."

Under the Constitution and Senate Rule II, the United States Senate remains the judge of the returns of this election. The certification of election results by Minnesota Secretary of State Mark Ritchie is only prima facie evidence of who actually won. But absent clear evidence of real fraud, Coleman will have a hard time persuading his colleagues to question the state's count if it concludes that Franken is the victor.

Scott Rafferty is a Washington-based lawyer who has specialized in election law for many political campaigns.

 
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