To demystify the ‘double votes,’ ponder the perch

One of the topics that has confused almost everyone watching the State Canvassing Board proceedings this week is the issue of the "double votes." To understand it, think of the double votes as the perch you throw back in the lake. [Way to go, Norm Coleman lawyer Tony Trimble, who devised the perch metaphor to explain double votes.]

Before I explain perch, a double votes primer:

Question: What’s a "double vote?"

Answer: A double vote is a ballot that’s been copied.

Question: What’s a "duplicate ballot?"

Answer: A duplicate ballot is the same thing as a double vote. The terms are used interchangeably.

Duplicate ballots are ballots that have been copied.

[To be very precise: A double vote is a ballot that was copied on election night and has been counted twice during the recount because the election judges failed to make the duplicate as such on election night. Read on to better understand the precise definition.]

Question: Why would anyone copy a ballot?

Answer: A ballot is copied if it is rejected by a vote-counting machine because something is wrong with the paper. [That's as opposed to something being wrong with what's ON the paper specifying votes for the different offices. What's ON the paper is what the Canvassing Board is determining this week on the more than 1,000 ballots it is reviewing.]

Examples: Sometimes a mailed-in, folded ballot has to be copied before the machine will accept it. Maybe someone chewed on a ballot and the machine rejected it. Often an overseas ballot has been through international mail hell and comes back torn.

All these ballots are copied so that they can be fed into the machines to deliver the proper vote totals from each precinct on election night.

Question: That sounds confusing. How do election judges keep the originals separate from the copies of the ballots?

Answer: Minnesota law is very clear on what is supposed to happen. Minnesota Statutes Section 206.86, Subdivision 5, reads:

"If a ballot card is damaged or defective so that it cannot be counted properly by the automatic tabulating equipment, a true duplicate copy must be made of the damaged ballot card in the presence of two judges not of the same major political party and must be substituted for the damaged ballot card. Likewise, a duplicate ballot card must be made of a defective ballot card which may not include the votes for the offices for which it is defective. Duplicate ballot cards must be clearly labeled ‘duplicate,’ indicate the precinct in which the corresponding damaged or defective ballot was cast, bear a serial number which must be recorded on the damaged or defective ballot card, and be counted in lieu of the damaged or defective ballot card. If a ballot card is damaged or defective so that it cannot be counted properly by the automatic tabulating equipment, the ballot card must be tallied at the counting center by two judges not of the same major political party, and the totals for all these ballot cards must be added to the totals for the respective precincts."

Question: Assume I concede that the Minnesota law is clear, what’s the problem?

Answer: Unfortunately, some precincts didn’t follow the law. We are, after all, dealing with an issue that requires, perhaps, the most extensive human handling of the entire Minnesota election process (before a recount). Some original and duplicate ballots were not clearly labeled; some were not labeled at all.

Question: How do we know this happened?

Answer: We know there are double votes because there are some precincts in which the recount number came out higher than the number tabulated by the machines on election night. Plus, people conducting the recount kept "incident reports" noting the problem.

Question: How many double votes are there?

Answer: You can see for yourself in this this document and this document. At this point, it looks like there are 134 double votes. As anyone watching the vote totals today knows, as the votes dwindle for Coleman and increase for Al Franken, 134 double votes could be a very big deal — if not THE deal — in deciding the election.

Question: Back to fish … where’s the perch?

Answer: The perch are the unmarked double votes thrown back into the "lake" of paper ballots. As Trimble noted, you catch a perch, you take it off the line, and you throw it back into the lake, where you can never find that exact perch because it looks like a ton of other perch.

Identifying these perch ballots are one of the problems, but a larger problem is whether to worry about the double votes in the first place.

Question: The Franken campaign says this issue has been resolved because both campaigns agreed on a process to count the double votes before the recount began. True?

Answer: Yes, the two campaigns agreed on a process. However, the Coleman campaign says it agreed to the statue cited above, which includes the idea that the duplicate ballots are counted "in lieu of" of the original (damaged ballot).

Question: So, if the Franken campaign wants the double votes counted, does that mean they think some voters deserved to get two votes?

Answer: It would certainly seem so. Marc Elias, the lead attorney for Franken, has conveniently avoided the "one voter gets two votes" question by arguing process instead (doing what any good lawyer does when the facts aren’t in your favor).

But, when all is said and done, one man, one vote is a cornerstone of our democracy.

Question: The Franken campaign is saying that the Coleman campaign is raising the double votes issue now because the campaign is in a panic. True?

Answer: That would certainly seem to be true today, when the vote totals are so dramatically changing and running in Franken’s favor. However, it’s not true if you think about the State Canvassing Board as a judicial/administrative proceeding, which it is. A key part of any judicial/administrative system is that you can’t raise an issue until it actually matters. In legalese, the issue has to be "ripe." Given that these 134 double votes now may matter, the issue is now ripe.

Question: What happens now?

Answer: That’s unclear. The State Canvassing Board has talked about the issue and had both campaigns make arguments before it on the issue. Two of the members of the board (Chief Justice Eric Magnuson and Justice Barry Anderson) said they believed there were double votes. The board is unclear about whether it has the authority to resolve the issue.

If these votes are the difference in who wins, you can bet there will be litigation.

Question: What’s the most troubling thing about the double votes?

Answer: Have you ever even contemplated trying to catch the same perch twice? Didn’t think so. Probably can’t be done.

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UPDATE. 7 p.m.-ish. The State Canvassing Board heard from both Elias and Trimble on the double votes issue at the end of the meeting today. The marching orders from the Board to both parties were to try to work out an agreement and present it to the Board first thing tomorrow. Can you spell F-a-t-C-h-a-n-c-e? SOS Mark Ritchie said the Board would announce its decision first thing on Friday. My prediction? The Board’s decision will be no decision. Bet the Board decides it doesn’t have the authority or jurisdiction to do anything. But that decision has consequences. The Board will certify the election without reviewing the double votes. If the vote counts are super close, the double votes issue could be downplayed in the most important court of all: The court of public opinion.

5 Responses to “To demystify the ‘double votes,’ ponder the perch”

1. Holly Cairns Says:
   December 19th, 2008 at 7:00 am

   This is casting a lot of doubt. Just what are you saying about the Minnesota election system?

2. SarahJanecek Says:
   December 19th, 2008 at 9:23 am

   Holly,

   I’ve been thinking about that.

3. Holly Cairns Says:
   December 19th, 2008 at 2:43 pm

   That’s a fair enough answer. I think the two folder idea should have worked, though. I’d be very happy for a Franken win, but I’d like voter intent to prevail. Human error… yikes.

4. CO1982 Says:
   December 19th, 2008 at 3:45 pm

   Question: So, if the Franken campaign wants the double votes counted, does that mean they think some voters deserved to get two votes?

   I’m sorry, but that is an incredibly hackish “question” to ask yourself. That is obviously not the Franken camp’s position at all. What makes you so certain that all of these ballots would be double-counted if accepted? How do you know it was human error in separating the original & duplicate vs. human error in discarding one of them?

   Incidentally, if this issue is reopened statewide and not just with the challenges Coleman presented (Franken’s camp was not allowed to submit similar challenges in some precincts) then Coleman is likely to lose votes from it, as a lot of ballots that need duplicating will be from military personnel overseas.

5. lojasmo Says:
   December 25th, 2008 at 8:37 am

   Should be “allegedly counted twice” at least, according to the SCoMN.