MN-Sen: Counting Into 2009?

On one level, I think both sides of the Minnesota Senate recount would be happy if they just up and declared a winner already, by whatever method - coin toss, thumb wrestling, a dart thrown at a board. But given that we live in a "democracy" where the party with the most "votes" is declared the winner, that's not going to happen. At least not yet.

So we wait for the counting to finish. The canvassing board is likely to wrap up their review of all the challenged ballots today, and so far things have been going extremely well for Al Franken there, enough for some folks to declare him the likely winner. The latest projections will show him to be up anywhere from 50-150 votes at the end of that process, if the withdrawn challenges are equal on both sides. The problem with that projection is that we don't really know what the deal is with those withdrawn ballots, but those who have taken a look are pretty confident that things look solid for Franken.

But the Minnesota Supreme Court threw a monkey in the wrench with their decision on a handful of absentee ballots (maybe 1,600) that were improperly rejected. They basically asked the campaigns to come up with a uniform counting standard for them, with both sides agreeing that the ballot has been rejected in error. You know, because they've been so helpful to one another so far.

Of course, what happens when a campaign stalls or withholds agreement, such as the Coleman campaign and any Minneapolis precincts? Well, the court threatens Rule 11 sanctions against the lawyers who abuse the process. Big freakin' deal. A Senate seat is at stake. Lawyers will risk fines in order to try and win this.

Ultimately, unless Coleman decides that democracy is good and all improperly rejected ballots should be counted, the Franken campaign will have to go back to court to ensure every properly cast ballot is counted.

So it seems the decision will lead to the right call -- counting all ballots, but makes the process unduly painful.

Coleman's lawyers actually cited Bush v. Gore in his hearing, a ruling so indefensible that the SCOTUS decided it would only be applicable "to the present circumstance". They didn't get what they wanted, but the courts put enough of a fog on the process to be almost as indefensible.

Nate at 538 has more. What this means in practice is that the legal wrangling over the remaining ballots will extend into the new year. And since those absentees have been unopened, it's impossible to predict the outcome without them, unless Franken surges into an unexpected lead or something. Ultimately, I'm reasonably confident that he has this won, but it could go beyond the swearing-in of the new Congress, and we may only have 98 seats at the beginning of the 111th Senate. There's some thought that Republican Governor Tim Pawlenty could in that case appoint a temporary Senator while the recount is being hashed out, but I find that extremely unlikely (the Senate would probably refuse to seat the replacement).