Minnesota Canvassing Judge Slams Criticisms of Bias, But Does Not Rebut a Single Allegation of Serious Mischief in the Coleman-Franken Recount

Investor’s Business Daily [link] has reported that on January 5, 2009, “after a flurry of ballots that materialized after election night, the Minnesota Canvassing Board determined that [Democrat] Al Franken is the duly elected junior senator from the land of 10,000 lakes and almost as many questionable ballots. The margin was 225 votes out of nearly 3 million cast…. Franken is not quite senator yet. Incumbent [Republican] Norm Coleman, who led on election night by more than 700 votes, has filed what is called an election contest. This is a legal proceeding, held before a panel of judges to be appointed by the chief judge of the Supreme Court, to determine the winner of the election.” I have written previously about this election contest here and here.

Specific serious allegations have been made of inconsistent decision making by the Canvassing Board that have favored Democrat Franken and disadvantaged Republican Coleman. Some of these allegations were outlined in a recent Wall Street Journal editorial (link). One member of the Canvassing Board has responded to the Journal’s editorial and his letter was published by the Journal on January 7. He is Edward J. Cleary, Assistant Chief Judge, Second Judicial District, as well as member of the Canvassing Board, who wrote (link):

As a member of the Minnesota State Canvassing Board, appointed pursuant to statute, I have attended all nine board open meetings held in the past seven weeks. I am knowledgeable about the proceedings, as well as Minnesota's election laws…. [A]ll of our major votes were unanimous. We consistently followed the law in limiting our involvement to a nonadjudicative role, declining both candidates' attempts to expand our mandate. Further, we painstakingly reviewed each challenged ballot, some more than once, to confirm that we were ruling in a consistent manner. One can only assume, based on the tone of the editorial, and the over-the-top slam at Al Franken, that had Norm Coleman come out on top in this recount, the members of the board would have been praised as "strong-willed, intelligent and perceptive."

Cleary does not respond to a single specific allegation of possible impropriety made by the Wall Street Journal. Not a single one. Here are three of them:

(1) Under Minnesota law, election officials are required to make a duplicate ballot if the original is damaged during Election Night counting. Officials are supposed to mark these as "duplicate" and segregate the original ballots. But it appears some officials may have failed to mark ballots as duplicates, which are now being counted in addition to the originals. This helps explain why more than 25 precincts now have more ballots than voters who signed in to vote. By some estimates this double counting has yielded Mr. Franken an additional 80 to 100 votes.

(2) In other cases, the board has been flagrantly inconsistent. Last month, Mr. Franken's campaign charged that one Hennepin County (Minneapolis) precinct had "lost" 133 votes, since the hand recount showed fewer ballots than machine votes recorded on Election Night. Though there is no proof to this missing vote charge -- officials may have accidentally run the ballots through the machine twice on Election Night -- the Canvassing Board chose to go with the Election Night total, rather than the actual number of ballots in the recount. That decision gave Mr. Franken a gain of 46 votes.

(3) Meanwhile, a Ramsey County precinct ended up with 177 more ballots than there were recorded votes on Election Night. In that case, the board decided to go with the extra ballots, rather than the Election Night total, even though the county is now showing more ballots than voters in the precinct. This gave Mr. Franken a net gain of 37 votes, which means he's benefited both ways from the board's inconsistency.

Cleary, a sitting Minnesota judge who should know about addressing issues when raised, does not respond to a single one of these very serious allegations, not a single one, yet he slams the Journal for “slamming” Democrat Al Franken.

Kevin Hassett of the American Enterprise Institute, has written (link):

Throughout the recount, the state’s majority Democratic political machine has been grinding away in Franken’s favor. From a dispute over double-counted ballots, to the treatment of rejected absentee forms, Coleman has lost every major dispute with Secretary of State Mark Ritchie, a Democrat, and the state canvassing board, which is controlled by Democrats. … It’s hard to imagine that Coleman is always wrong and Franken always right. So what is really going on in Minnesota?

The fact remains – specific allegations have been made of inconsistent Canvassing Board decisions that served to favor Democrat Franken. Canvassing Board member Cleary blows smoke but does not even mention let alone rebut a single allegation. This is supposed to assure us that he has been balanced and fair? I remain unconvinced.


John M Greco