The Last Undecided Election

The last undecided election of 2008 may well be the first one decided in 2009. On Tuesday the Minnesota state canvassing board will begin examining challenged ballots in what hopefully is the final round of deliberations in the Senate race between GOP incumbent Norm Coleman and comedian Al Franken, the Democrat.

As of Monday, Coleman officially led by 188 votes of the almost 3 million cast. The Franken team, however, believes that they are actually ahead by four, yes four -- more than three and less than five -- and they believe that when all the counting and shouting is done, Al Franken will become the 2,006th person to serve in the United States Senate.

The Democratic confidence is based in large part on the fact that the election will be decided by 6,655 ballots that were counted but are now not part of the count because they have been challenged by one side or the other. Both campaigns have pledged to significantly reduce the number of challenges by the time the board began examining the ballots. After those challenges are considered, those ballots can be counted for their original winner, thrown out altogether, or switched to the opponent. The four-vote margin to which the Franken camp clings is based on all of those challenges being rejected, because that is mostly what will happen.

"From the long history of challenges, we know that the vast majority are going to be rejected," Franken's spokesman Andy Barr, told me. If that's the case, most of the ballots will count the way they were originally tabulated. But Democrats may have an edge in this challenge game; to the extent challenges are winnable, they have the leading expert in the area on their side. Marc Elias, counsel for the Franken campaign and the Democratic Senatorial Campaign Committee, has spent more time on recounts than maybe any other lawyer in the country.

"We think our challenges are better than Coleman's," Barr said in a careful burst of optimism.

Elias has been in Minneapolis heading up and an army of 250 volunteer lawyers making sure that his candidate, who has never officially taken the lead, has never been counted out. Elias' recount specialization began in Nevada in 1998, when now-Majority Leader Harry Reid was seeking a third term and fending off a stiff challenge from then-Congressman John Ensign.

Reid was ahead by 459 votes on election night, but a hand recount yielded Ensign an additional 100 votes, shaving the thin margin even thinner. It took nine days to complete the recount, and when all was said and done, Reid had survived by a mere 424 votes.

Elias' basic model is to declare victory if his candidate is ahead and prevent the other side from doing so if he's not. In 2006, the last Senate race decided -- Jon Tester's win in Montana -- was close and seemed headed for a recount, but early on Wednesday morning, before all the returns were in, Tester, who held a slight lead, declared victory over the incumbent Conrad Burns, who was nowhere close to conceding.

From the very beginning of the Minnesota recount, the Democratic mantra has been to "count every vote." It is a high-brow, moralistic message that makes the nasty knife fight taking place in the trenches seem like a more civilized exercise.

"It's made it easier for us to stay on message the whole way through," said Barr.

In the 36 days since Election Day, Minnesotans have been through several stages of grief in trying to figure out who they elected to the Senate. First came the post-election canvass, in which every county was asked to verify the numbers they submitted on election night, when Franken trailed Coleman by 215 votes. That initial canvass netted Franken 43 more votes and cut the Coleman's lead to 172. In the next phase, Coleman's lead grew, then shrank to 33, at which point an automatic hand recount was triggered. It was during that hand recount that both sides began challenging the legitimacy of thousands of ballots.

The canvassing board will now have to determine the validity of those challenges, and it may be a while before that process is completed, and then, the potential of litigation looms large, whatever the outcome.

The board has already been forced to confront, again, the issue of 12,000 disqualified absentee ballots. The board had already once denied a request by the Franken campaign to include those rejected absentee ballots in the recount, but on Friday it reversed itself, saying that the hundreds of absentee ballots that had been improperly rejected should be counted. Secretary of State Mark Ritchie had asked each county to sort those ballots by the reason for their rejection. There are four legal reasons for rejecting absentee ballots in Minnesota: inconsistent addresses, forged, fake, or missing signatures, a non-registered applicant, or an absentee applicant who voted in person. Minnesota now also has what is called Pile 5, absentee ballots that were rejected for none of those reasons. There are as many as 1,500 of those ballots, and on Friday the canvassing board decided that they chould be counted. The explanations for the improper rejection were not always clear but ranged from mistakes on the part of tabulators to failure to verify the information on the ballot. Ritchie and campaign officials estimated that the Pile 5 count could run to as many as 1,000 votes, more than enough to decide the election. But the number could be even higher, according the St. Paul Pioneer Press.

"According to a Pioneer Press analysis of information from 12 counties, which have made progress in sorting their absentees and told the newspaper their results, 358 absentee ballots were improperly rejected out of 2,216. That's a wrongful rejection rate of 16 percent. If there were 12,000 rejected absentee ballots statewide and 16 percent were improperly rejected, that would mean about 2,000 ballots should have been counted on Election Day but weren't," the paper said.

The difference between 58 and 59 Democratic senators may not be significant politically in the 111th Congress, but Democrats want this seat as badly as any. They could get it, but they may have to wait a while for Minnesota to decide.