Minnesota Senate Election

Minnesota Senate Election  (2009) 
by Jon Llewellyn Kyl

Minnesota Senate Election



January 13, 2009


Mr. KYL. Mr. President, I wish to speak briefly about the contest in Minnesota involving the Senate seat currently held by Senator Norm Coleman. Obviously, the other new Members of the Senate were sworn in last week, but this seat remains empty, a winner yet undeclared.

To be clear, under Minnesota law, that is the way it has to be right now because there is an election contest that has been filed in the courts, and under Minnesota law, therefore, neither the Secretary of State nor the Governor can declare the seat filled.

Senator Coleman had been declared the winner on election night and through the ensuing administrative canvassing process. But throughout the following State Canvassing Board stage of the proceedings, there were numerous inconsistencies and problems uncovered, and the board- certified totals were different. They are, obviously, at issue, and they are preliminary.

The Minnesota State Canvassing Board totals, for example, include more votes than voters in a significant number of the Minnesota precincts. So, clearly, there is something wrong, and it has to be resolved by the court.

The Coleman campaign has followed Minnesota election law in filing an election contest, and that comes before a three-judge panel in Minnesota before the end of this month.

The contest is based on significant errors. I wish to mention four of these categories so folks will understand what is at issue.

First is newly discovered ballots which appeared for the first time during the recount and are included in the State Canvassing Board totals.

Second is missing ballots supposedly tallied on election night but which could not be found during the recount process--obviously a problem.

Third is double-counting of duplicate and original ballots of the same voter during the recount process.

Fourth is wrongly rejected absentee ballots and inconsistent standards regarding what constitutes a wrongly rejected absentee ballot applied in different locations throughout the State.

Let me discuss each of these briefly in turn.

On the newly discovered ballots, there are 171 such ballots that appeared without explanation several days after the election in Ramsey County precinct Maplewood P6. Election officials were unable to reconcile the number of votes cast with the number of voters signed in, but the board, nevertheless, included the additional votes in Al Franken's favor in its totals. Furthermore, the board directed that this issue should properly be dealt with during the contest phase, and that, of course, is now occurring.

On the missing ballots, there were 133 ballots in Hennepin County that could not be found during the recount and were declared "missing," despite the fact that there are any number of possible reasons for the change, including the possibility that the ballots never existed in the first place. But instead of following a consistent standard and including the new recount total, the board reverted to election night totals, again resulting in more votes for Al Franken.

On the double-counting, in at least 25 precincts in Minnesota, there are more votes than voters in the Canvassing Board's totals, and there are 150 separate incident logs prepared by local recount officials describing issues involving duplicate and original ballot counting. This is due to the counting of both the voter's original ballot and a duplicate ballot which was created to take the place of the original ballot, resulting in double-counting of some votes when both of those ballots are included in the total. That is, obviously a blatant error and one that threatens the sanctity of "one person, one vote." Obviously, most people get one vote. Those who got more than one vote have an advantage for whom they cast their ballot.

Both the Canvassing Board and the Minnesota Supreme Court directed the issue to be dealt with during the election contest. So that issue is now being dealt with.

Finally, on the category of wrongly rejected absentee ballots, during the recount process, a "fifth pile" was created for absentee ballots that were rejected but not because one of the four reasons stipulated by Minnesota election law. This fifth pile was requested by the Franken campaign at the time they were trailing in the count, and the Canvassing Board granted the request without issuing any direction to ensure consistency among the counties in their review. A vast number of these ballots, which happened to generate more votes for Franken, were included in the Canvassing Board total. However, the board also refused to review over 160 ballots requested by the Coleman campaign.

We can see there are obviously some issues to be resolved. The three- judge panel will be appointed. The campaigns will convene with the panel, set forth the ground rules for the election contest trial, and then that will occur.

There are no stipulations for when the proceedings must be completed, and estimations are, at least from folks in Minnesota, that it could take a month, if not more.

As a part of that context, the Coleman campaign has requested the review of hundreds more ballots that may have been wrongly rejected. Because of the size of the pool of ballots to be reviewed and the erroneous recount totals including questionable votes for Franken, Senator Coleman has expressed confidence that the numbers will revert back to where they were on election night and his lead will be restored and then he would be declared the winner.

Obviously, this is for the Canvassing Board and the court in Minnesota to resolve. It is not for us to prejudge the result at this time. Unfortunately, the majority leader and his staff have publicly stated they would try to seat Al Franken while the contest is still proceeding, despite the fact there is not a signed certificate, which is required of every Senator. This dates back to 1884. This action, of course, was blocked, and we presume the process will continue in regular order to await the result of the proceedings.

It is true Al Franken attempted to declare himself the winner. Yesterday, the campaign requested the Governor and Secretary of State send him a certificate so he could be seated. But it was, of course, not granted because both officials indicated correctly that would directly violate State law.

So we are left with the matter of a vacancy in Minnesota, with the issue to be resolved by the people in Minnesota, properly under their law, the Canvassing Board, and the three-judge court. For my part, I certainly hope this phase will not fall prey to inconsistencies and problems that have led some experts and newspaper editorials to claim the election process needs to be fundamentally reformed. If it is done in the proper way and due care for the evidence that is presented, then hopefully everyone will be satisfied with the result and willing to abide by that result. It will then come to the Senate, and we will seat the appropriate candidate.

The Republicans ask for nothing more. We are certainly hopeful our former colleague and soon-to-be current colleague, Senator Coleman, will resume his seat. But that is for the process in Minnesota to determine, not for that to be determined in some arbitrary way in the Senate.


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).