Coldheartedtruth

Currently RCP polling shows that
the GOP will pick up seven seats!

No... not seven seats in the House, but seven seats in the Senate. Which means that if polling was accurate and the elections were held today that the Senate breakdown would end up at 52-48 in favor of the Democrats. A year ago this would have been considered best case scenario for the GOP. But as it stands, this might be the new break even point.

Let's start with Seats currently held by Democrats:

(North Dakota, Arkansas, Indiana, Delaware - Safe GOP pickups)
(Pennsylvania - Likely GOP pickup)

They hold almost insurmountable double digit leads in four pick up states (North Dakota, Arkansas, Indiana, Delaware), as well as a solid 8.5% lead in Pennsylvania. The first four have never been seriously challenged, and you have to go all the way back to a Daily Kos sample in May to find a poll that show Democrat Joe Stestak with a lead over Pat Toomey in the Pennsylvania race.

(Colorado - Leans GOP)

In Colorado, Ken Buck is leading incumbent Michael Bennett by 2.5% in the RCP average. More importantly, Bennet is polling at a measly 43.5% which usually spells big trouble for incumbents. Buck has lead or been tied in every poll "other" than the PPP and Daily Kos polls.

(Illinois,Wisconsin, Nevada, Washington, Boxer - Toss up)

In Illinois, Mark Kirk (R) is leading Alexi Giannoulias (D) by much smaller margins. In fact, up until very recently, Giannoulias has had the upper hand. I see this race as pretty much toss up, with momentum on the side of Kirk.

In Wisconsin, the seemingly safe Russ Feingold finds himself in a dog fight. He is only polling at 45.3% and the latest poll showed the challenger Ron Johnson with a 1% lead. This one is about as close to leaning GOP as it can get.

In Nevada, Harry Reid's seemingly unlimited money resources has changed the dynamics of a race he was once losing by double digits. Right now polling is neck and neck with the last two showing a split result. If his initial attacks against Tea Party favorite Sharron Angle wears off, he could easily find himself down again.

In Washington, incumbent Patty Murray was another Democrat who was not supposed to be seriously challenged. How shocking must it be to see the recent SUSA poll showing challenger Dino Rossi (of recount fame) leading her by 7 points. A couple new polls showing a similar number and this could be another race "leaning" towards the GOP.

In California, Barbara Boxer (yes Barbara Boxer) also finds herself in a honest to goodness race with Republican Carly Fiorina. In fact Fiorina led Boxer by five in the latest SUSA poll. Other polls have shown Boxer with leads, but her average support has dwindled down to 44.8% which is certainly in the danger zone for incumbents.

Recap: So the GOP needs to pick up 10 seats to take the outright majority (although many believe that Joe Lieberman would be willing to caucus with them if they got to 50). I would currently project that they will pick up six seats and have at least an even chance at five others. Depending on how things go over the next two months... those other five could fall in line for the Republicans.

How about Democratic chances for Pickups? Currently they don't lead in any races that are currently held by the GOP... but they do have some chances.

(Florida - Toss up)

Polling has been all over the place in this three way race. But let's be clear... there is no chance that the Democrat Kendrick Meek will win this race. It's really between Tea Party favorite Marco Rubio and Independent candidate Charlie Christ. The Democrat's best chance for a pick up is two fold. Christ must win, and then must decide to turn his back on being a lifetime Republican to caucus with the Democrats. Had Christ not entered the race as an independent, this would be a no contest. Right now Rubio leads (according to RCP average) by 2.4%.

(Ohio, Kentucky - leans Republican)

In Ohio, Republican Rob Portman is currently ahead by 3.7% in the latest RCP polling average. This is a little misleading, as they are still using a two month old PPP poll showing the Democrat Lee Fisher leading by 2 points. Rasmussen and Reuters/Ipsos both have recently shown this race with Portman up by upper single digits.

In Kentucky, Rand Paul has led in pretty much every poll out there with the exception of one PPP and one local media poll. That being said, his leads do not appear insurmountable and he is certainly a polarizing figure.

(Missouri, North Carolina - Likely Republican)

In Missouri, Roy Blunt leads Robin Carnahan by an average of 6.7% according to RCP. However his leads seem to be increasing and it is unlikely that the Democrats can afford to put much money into the "possibility" of a pickup here when they have so much area to defend.

In North Carolina we are looking at the only real GOP incumbent candidate that we can even consider being vulnerable. That being said Richard Burr has led Elaine Marshall in every single poll that has been released.... and currently holds an average of 7.7%

Recap: The "best" that the Democrats could hope for at this point is that the Florida angle works out for them, and they can sneak through with an upset in one of these other races. But short of the political landscape changing drastically over the next few weeks, they are looking more at defending their seats than hoping to pick any up.

Not much of a surprise here. Coleman had an uphill battle from the start; based on the standpoint that he simply did not have tangible proof of the issues he was bringing up. I think everyone following this understands that there was different standards used in counting absentee ballots and in terms of the recounts, and that those difference probably swung this election. But unlike the more famous Bush/Gore case where the USSC pretty much stopped the process in it's tracks, there is not much a court can to to "undo" what was already done.

That being said, what Coleman was asking for was more votes to be counted (even if they did not comply completely with the law) because he believes they were counted elsewhere. Interestingly the Minnesota State Supreme Court ruled that Absentee voting is an "optional" method of voting that having your vote tossed out on a technicality is basically just "tough luck". The expectation is that you must fill out your absentee ballot completely, correctly, and thoroughly in order for it to count. (unless of course you voted in Hennepin or St Louis county where those same votes had already been counted).

This sort of reasoning (had it been used to confirm a Coleman win) would have been pounced on by every liberal, minority, and equal rights group in the nation as patently unfair. I am pretty sure that these same people once argued that as long you could distinguish your "intent" then having your vote counted is a "right". To tell 4000 voters that their absentee ballots with clear intent would not be counted because of technicalities would have been deemed a crime against humanity if those voters might have tipped the scales for Franken. But since the ruling actually helped Franken in this case, I doubt there will be a peep.

What will be interesting in the next few days is whether or not lame duck and future Republican Presidential hopeful Tim "I have not had any affairs and have not raised taxes" Pawlenty will sign an election certificate. Franken had asked the court for an "order" for Pawlenty to sign (which is what Pawlenty has suggested he needs). However,the court offered in their ruling that Franken is "entiled" to the certification, while failing to specifically grant an order, which appears to leave the door open for Pawlenty to wait. I would offer that short of the USSC actually granting some sort of stay of this ruling that Pawlenty should probably just sign the certificate and get it over with. I don't see the USSC overturning this ruling if they even decide to hear it in the first place.

UPDATE: Coleman has decided "not" to appeal and has effectively conceded, saying that Franken had run a good, clean, honest, but mostly funny campaign.

The first set of judges have spoken... and I have to say that they went much further than necessary in "defending" the integrity of the Minnesota election process. In fact, several pundits have made the observation that this court seemed more interested in aquitting the broader election process than actually ruling on the issues before them. I tend to agree.

The coldheartedtruth here folks is that our reputation for putting on fair and orderly elections has been turned on it's head and the one place that a judges ruling has little effect is public opinion. But yet, swaying public opinion appeared to be a crucial goal for this court from the very start.

Now there is no question that Norm Coleman's challenge has been an uphill battle from a legal standpoint. But his arguments have a broader sense of fairness that most people understand. Heck, even the Star and Tribune editoral board has been on board with Norm's challenge and even called for his appeal to the State Supreme Court.

To review the basic argument in the simplist terms, the Coleman camp contends (with very little resistance from anyone) that certain Democratic leaning counties used a much less stringent standards than other counties for including absentee ballots into the count. However, while everyone pretty much agrees that this happened, there is apparently no way to go back and determine which of the counted ballots were properly included and which were not, or in fact how many such ballots were counted (although I have heard estimates anywhere from a few hundred to three thousand).

So herein lies the rub.

Coleman's legal argument is to suggest that because a particular sort of ballot was included by county A that the same ballot should be included by county B. But in essense he then asks a court to include ballots that are technically not legal ballots, something a court is obviously loath to do. Especially when you are looking at as many as 4000 additional ballots.

The proper response from the court should have been similar to the response that Coleman got from the canvassing board... which is to say that you have a valid point... you were probably harmed by the process... but we have no authority to render any reasonable legal remedy. Or as one legal observer noted: due process and equal protection still does not guarantee a perfect election... and this election was far from perfect.

Instead the set of judges pretty much declared all is well, the election process was fair and impartial, and that the nation should look to Minnesota for our outstanding ability to put together the near perfect election. Of course if it was so good, why does everyone pretty much acknowledges that major changes to our absentee ballot laws are necessary??

So on to the MSSC we go, with a possible appeal to the USSC if that fails. I think at this point most Minnesotans just want this to come to an end, and I would guess if given their druthers that the hands down majority would prefer to seat Dean Barkely if given the choice today. But at the very least, if this is going to continue, the Supreme Court should take an honest and thoughtful approach regarding the specific issues at hand, rather than the more flippant view that the first court seemed to take.

It's been a 104 days since the Election and we are still mired in the thick of the election "contest". Originally the Coleman camp had asked for about 12,000 absentee ballots to be counted, then they pared it down to around 4500, grouping them into 19 different categories.

Late last week we finally got some sort of a ruling from the three judge panel, when they decided to throw out all ballots from 13 of the 19 categories. This initially appeared to be a big win for the Franken team, but when the dust was finally settled, it was determined that the 13 categories only accounted for approximately 900-100 ballots, which still leaves 3500-3600 on the table. The Coleman camp is on record as saying that they believe that ultimately they need at least 2000-2500 ballots to be counted in order to overtake the Franken lead, so they still appear to have at least a bit of margin.

But herein lies the rub... and why I was often very critical of the Secretary of State's office and the way his review panel handled the initial recount. By either making rulings or allowing various counties to make their own decisions about certain Franken grievances, while telling the Coleman camp that they would need to go to court to have similar grievance heard, they in essense created a different standard.

For example, while certain types of originally rejected absentee ballots were eventually included in Hennepin, St Louis and Ramsey, other counties declined to include similar ballots. But the fact that Hennepin, St Louis, or Ramsey counties counted them becomes completely irrelevant to the court proceeding today. One might think that the logic of "equal protection" would be in play, but apparently it is not one of the considerations of this protest panel. Instead, the Coleman camp has to not only show that they were "erroneously rejected" which was the standard used during the recount, but they have to also prove that they were legitimately cast. Obviously a much bigger burden.

Or in the case of the "missing ballots" that the Franken team made such a stink over, the canvassing board made it's own ruling. A ruling, that in fact, went for Franken, overturning the local canvassing board and ignoring the Minnesota legal precedent set by the State Supreme Court on the very subject. On the flip side, they refused to make any ruling on the subject of double counting, while even admitting openly that they believe that double counting did occur. Their argument at that point was that they had no authority to overrule the local officials, even as they had done so previously. So once again, the Franken team benefitted from a questionable call from the canvassing board that ignored legal precedent, while Coleman was forced to go to court to deal with a grievance that they admitted probably occured.

So what about the 3500 ballots left? Well... to put things into perspective, it is being suggested that the largest group of ballots still out there are those that were rejected due to the signatures on the ballot not matching the signature on the envelope. (This was also one of the largest groups of ballots allowed into the recount from the three before mentioned counties). In order to really determine if these ballots were legitimately cast, would they have actually go out and interview each and every one of these rejected absentee voters? Is it possible that a majority of these voters actually voted legally?

Time will tell... Oh, and when this whole subject of absentee ballots is resolved, then we get into the subjects of double counted ballots, missing ballots, and the standards used during the protest phase...

104 days and counting.

Well the first day of the legal battle between Norm Coleman and Al Franken got off on what would appear to be a "typical" foot in terms of this particular Senate contest.

After the three judge panel rejected the original Coleman attempt to subpoena several thousand rejected absentee ballots for review, the Coleman team was forced to bring in "photo-copies" of the rejected absentee ballots instead. But the three judge panel determined that the photocopes were inadequate and has now asked that the Coleman camp subpoena the original ballots instead. Doh!

My understanding is that the Coleman team originally photocopied these ballots for their own use working under the assumption that the originals would be used for trial. So they had put their own notes on the photocopies, which of course presents an issue for the judges because it is hard to tell whether some notes are from the local officials or from the Coleman team. You also have issues where the photocopies perhaps cut off the tops, bottoms, or sides of a ballot.

Now the judges appear upset with the Coleman team for what could be a delay of upwards of a week. But it seems to me that their original ruling (and not the Coleman team) is to blame for this delay. But once again... it seems like every decision made in this particular recount has been made with the sole intention of making it difficult.

Thinking ahead to a change in law...

In retrospect, the biggest problem in my humble opinion was the decision up front to "decentralize" the entire process. What I mean by this is that rather than allow local counties to do their own recounts, make their own decisions, and ultimately be the once to "recheck" their own original rulings, all ballots should have been sent to one location where a third party group would have done the counting. You could have hired an out of state accounting or auditing firm to do this in one location and it probably would have cost no more than how it was done and it probably could have been completed in half the time.

Had this been done, most of the issues involved with challenges, with protests, with lawsuits, and ultimatey with the election contest trial would have been eliminated. In almost every instance, the suggested issues involved have to do with one county or precint making one determination, while another county or precinct makes a different one. Specifically the problem comes in is when one election official determines that the enfranchisement of a voter is more important than sticking to the letter of the law, while another doesn't. If you had one independent organization making the same determination on a ballot from Hennepin and a ballot from Dakota, then we avoid the issues that are being brought up in this trial.

Call me suspicious... but I tend to believe that the preference for Democrats is to allow these things to be carried out county by county. Because in every recount in recent history, the most controversial and most beneficial results always come from the heavy leaning Democratic counties and precincts, while the heavy GOP precincts always seem to go in an orderly and expected fashion. I also believe that as a mindset, Democratic officials are more likely to "include" or "count" a questionable ballot for sake of enfranchisement, while Republicans are more likely to be the ones who stick to the letter of the law. Lastly, I believe that a Democratic official will be more willing to admit to making a "mistake" if it benefits their candidate, whereas I think by nature a Republican official may be more likely to stick to their guns regardless of who is helped or hurt.

Moving forward...

Now, what this trial boils down is the constitutional argument that certain ballots should be reconsidered because the same ballots were treated differently elsewhere, vs the legal argument that the decisions of the local officials are within the boundries of the law and therefore should not be overturned after the fact. Even if everything goes his way, there is a decent chance that Coleman will not find enough new votes to pull this out. Of course, on the flip side, they wouldn't be challenging the election if there wasn't even a hypothetical way to pick up the 225 votes.

The Coleman camp is proposing a five stage contest in which each issue would be resolved before moving on to the next issue. The camp has suggested that this will allow for the possibility to cut the legal proceedings short if it is determined at some stage that he cannot pick up the votes necessary to win the challenge. It also allows for the possibility that this thing could be drawn out considerably.

In fact, the schedule at this point would not be concluded until November of 2014... conveniently around the time the next election would take place.

Okay... I am making that last part up... but we "are" looking at the possibility of dragging this thing out till the end of February.