Coleman leads Franken by 2 votes
The decision, a partial victory for Coleman, says that counties cannot include vote totals than include ballots where absentee voters did everything right but where election judges mistakenly rejected the ballots -- unless the two sides agree they should be included. By a 3-2 vote, the court ordered the two campaigns, along with state and local elections officials, to establish a process for identifying and deciding on all such ballots. If they agree the vote should be counted, it will be included in the recount totals. The court set a deadline of Dec. 31 at 4 p.m. for figuring out whether to count the ballots. The campaigns would still have the option of taking rejected absentee ballots to court.Check out the full document here.
The process established by the Supreme Court is likely to be contentious and cumbersome. The sheer number of parties it involves in the process, when coupled with the lack of guidance it provides to them, creates an environment in which fatigue and partisanship are likely to prevail over Minnesota Nice. The most burdensome part of the process, of course, is the requirement that each individual ballot must be mutually agreed upon to have been rejected in error before it is opened and counted.
The trap is as follows. The campaigns can't know, in theory, which candidate a ballot might be counted for when they are negotiating whether or not it is a legitimate ballot. This is because absentee ballots are sealed. (I caveat this with "in theory, because the campaigns will undoubtedly be able to cross-check some fraction of the absentee ballots against their voter lists). What the campaigns can know, however, is which candidate is more likely to win that ballot based on the demographics of the precinct. In a heavily black precinct in Minneapolis, Franken would presumably be more inclined to open the ballot, and the Coleman campaign less so. Conversely, in a wealthy suburb of Rochester, the Coleman campaign might be more inclined to take the gamble and open the magic envelope.