The Minnesota Recount Canvassing Board, composed of Minnesota Chief Justice Eric Magnuson, Justice G. Barry Anderson, Judge Kathleen Gearin, Judge Edward Cleary, and Minnesota's Secretary of State, Mark Ritchie, has unanimously found itself to be lacking in authority under Minnesota law to decide whether absentee ballots that have been rejected for specified reasons by county officials should be included in the on going recount. The decision as to whether or not such rejected absentee ballots will be included at some point in the future is thus left to the courts or to the U. S. Senate, the up shot being that we may not know the outcome of the contest between Messrs. Coleman and Franken for many weeks to come, conceivably not until after the inauguration of President-elect Obama on January 20th. An interesting commentary on the Minnesota recount appeared in a recent issue of The Wall Street Journal. May I share it with you here.

The Battle for Minnesota Is Just Getting Started
By: John Fund
The Wall Street Journal
Wednesday, November 26, 2008, Minneapolis

In a government warehouse in the northeast part of this city, the recount of the Senate race between GOP Senator Norm Coleman and Democrat Al Franken is orderly and transparent. Teams of workers sort paper optical-scan ballots as campaign representatives look on.    Minneapolis election director Cindy Reichert allows outsiders almost to lean over the shoulders of the counters and observe their work. At least here, everyone is "Minnesota nice."

That may soon change. Today [November 26th] the state's five-member Canvassing Board meets to rule on Mr. Franken's demand that it review whether absentee ballots REJECTED by county officials can be ADDED to vote totals. [As noted, the Board declared itself unauthorized to make a decision either way]. Those ballots are likely to determine the outcome before the U. S. Senate, which is the final judge of the winner. A lot rides on the result because the Minnesota race, along with a December 2 runoff in Georgia, will determine if Democrats get the 60 votes they need to cut off GOP filibusters on a party-line vote.

"Things are clearly moving in the WRONG direction for Franken [in the recount], " Larry Jacobs, a political scientist at the University of Minnesota, told the St. Paul Pioneer Press. He says many of the challenges filed by both campaigns against individual ballots are frivolous and will be with drawn or dismissed by the canvassing board. "The Franken campaign is going to win or lose based on what happens with the absentees."

A review of less than half of Minnesota's 87 counties has found that at least 2,066 absentee ballots were rejected because the voter wasn't registered, didn't sign the ballot or have a witness. Late yesterday the Franken campaign claimed it had learned of hundreds of "missing ballots." Those numbers dwarf the 725-vote margin Mr. Coleman had on election night, as well as the 215-vote lead he had before the recount began, and his current lead of some 200 votes.

The problem with adding absentee ballots is state law. According to an advisory opinion issued last week by the office of Democratic State Attorney General Lori Swanson, "Only the ballots cast in the election and the summary statements certified by election judges may be considered in the recount process." A recount manual prepared this year by the office of Secretary of State Mark Ritchie, also a Democrat, makes clear that the canvassing board only supervises "an administrative recount" that is "NOT to determine if absentee ballots were PROPERLY accepted."

But Mr. Franken's attorneys are now arguing that Minnesota law also requires that each county's election report include, "the complete voting activity within that county."
[I should think rather that the obligation would be to include "the complete LEGITIMATE voting activity within that county"].
They are also invoking the Equal Protection arguments cited by the Supreme Court in Bush vs. Gore as well as rulings from Washington State's disputed 2004 governor's race-that contest was decided for Democrat Christine Gregoire by 133 votes after an initial count and two subsequent recounts.

Intent on harvesting absentee ballots, the Franken camgaign has presented a affidavits from four voters who claim their ballots were improperly rejected. It hopes to find more now that a Ramsey County judge has agreed to a Franken demand that it have access to data from that county whose absentee ballots had been rejected. After initially saying rejected absentee ballots shouldn't be part of the recount, the secretary of state's office now says the information should be made public.

If the absentee names are made public, a mad scramble will ensue to contact those voters and get them to demand that their ballots be counted.   That's just what happened in the 2004 governor's race in Washington State after King County Judge Dean Lum allowed local Democratv access to the list of provisioiitil voters that hadn't been counted because either there was no signature or no match between the signature and the voter registration on file with officials.

Judge Lum's ruling was criticized by many election lawyers because in the 2002 Help America Vote Act, Congress stipulated that provisional ballot votes REMAIN PRIVATE-A provision mirrored by Washington State's constitution. But Judge Lum ruled such arguments weren't as important as the need to make sure EVERY vote counted-an echo of the arguments Democrats made during Florida's 2000 recount.

His ruling set off a partisan hunt for votes. Ryan Bianchi, communications assistant for Ms. Gregoire, told the Seattle Times that Democratic volunteers asked voters if they had cast ballots for Ms. Gregoire. "If they say no, we just tell them to have a nice day, " he said. Only if they said yes did Democrats ask if they wanted to make their ballots valid.

Margot Swanson, a voter in Redmond who forgot to sign her ballot, told me she was contacted by phone and asked whom she voted for. When she said Republican Dino Rossi, the caller quickly hung up. "I puzzled out that there might be a problem with my ballot, and I found out there was," she said. "But I would never have known from the tricky call I got."

Republicans plaved catch-up by belatedly using their own phone banks to call voters. But Democrats turned in some 600 written oaths from people declaring how they had INTENDED to vote, and Republicans about 200. Those ballots were all counted, and made the difference in the race.

Games can be played with such last-minute ballots. In Washington State, one voter submitted an affidavit that a Parkinson's disease patient who could neither speak nor write was nonetheless "mentally" strong" and had completed a ballot signed by her husband. But it is illegal for anyone to sign a ballot on behalf of someone else; they can only witness it. And in Minnesota, even Secretary of State Ritchie criticized the Franken campaign last week for falsely claiming that an elderly woman in Bemidji had her absentee ballot rejected because she had suffered a stroke and her new signature didn't match the one on her registration form. In fact, NO ballots were rejected due to signature mismatches, according to the local county auditor.

Democrats with experience from the Washington [State] recount are now advising Mr. Franken. Paul Berendt, a former chair of the Washington Democratic Party, was in Minneapolis this month. "What I bring to this effort," he told Oregon Public Radio from the Minneapolis recount office, "is that I understand every single step of this recount process and the things that you need to look for in order to make sure that every vote is counted."

If the strategy of  ADDING PREVIOUSLY REJECTED BALLOTS to the Minnesota Senate recount is successful, a final outcome could be months away. In 1975, the U.S. Senate refused to accept New Hampshire's certification that Republican Louis Wyman had won by two votes. The seat was vacant for seven months, with the Senate debate spanning 100 hours and six unsuccessful attempts to break a fillibuster and to vote on who should be seated. The impasse ended only when a special election was agreed to, which was won by Democrat John Durkin.

Given how critical Minnesota's election is for the outcome of filibusters, don't be surprised if this recount becomes "Washington mean" when the Senate convenes in January.

Emphasis added.
Mr. Fund is a columnist for WSJ.com