Jesus, Bob Dylan and Mickey Mouse will play a part in determining Minnesota's next senator. So will voters who scrawled the same name for every local race. And so will people who marked their choice not just with a darkened oval but with an X, too — maybe for emphasis, or maybe for a do-over.
Those ballots by people who took creative liberties, as well as thousands of others being challenged, are critical in the tight battle between Republican Sen. Norm Coleman and his Democratic challenger, Al Franken. A state board begins meeting Tuesday to decide their fate.
But an Associated Press analysis of the more than 5,000 challenged ballots found that most of the votes have clear intent and no deficiencies for which they would be disqualified under Minnesota law. The AP's cataloguing includes many challenges that were later withdrawn by the campaigns and the roughly 3,500 that remained up in the air as of Saturday.
Of the 2.9 million votes already recounted, Coleman leads Franken by fewer than 200. But the AP's analysis found that nearly 300 challenges wouldn't benefit either man because the voter clearly favored a third-party candidate or skipped the race.
Franken's campaign to pare its challenges
The AP also found that among challenged ballots that easily could be assigned, Franken netted 200 more votes than Coleman. But Coleman has withdrawn significantly fewer ballot challenges than Franken — that is, the pool of challenges that can now be awarded to Franken is larger, and Franken's campaign announced Sunday it would pare its challenges to fewer than 500 by Tuesday.
Of the remaining challenges, the AP found that only about 1,640 couldn't reliably be awarded to either candidate. More than 400 possible Franken votes were being held up on grounds that those voters identified their ballots through write-ins, initials, phone numbers or some other distinctive marking. At least 300 possible Coleman votes were in limbo for the same reasons.
Franken could also get a boost because a few more of his potential supporters than Coleman's were among the nearly 600 ballots that had two filled-in ovals as well as crossed-out votes, an X above or below their darkened oval, or different-size partial marks in more than one oval.
The state's laws on voter intent offer latitude when a person fails to cleanly mark an oval or connect an arrow on the two types of optical scan ballots used by the state.
Voters who use an X outside the oval can still have that vote counted if it's close to a candidate's spot. They can use checks for some offices and fill out ovals for others. And voters who change their minds can try to erase a mark in favor of another choice as long as the remaining vote is apparent.
Review could be complete by Friday
Secretary of State Mark Ritchie, who heads the state Canvassing Board with four judges, has set a goal of completing the challenged ballot reviews by Friday. The AP analysis suggested that the process could move fast once the board shows its mind on the challenge types that occurred most frequently.
Ohio State University election law expert Edward Foley, who is closely tracking Minnesota's recount, said the board's early rulings could set patterns for the rest of the review.
Foley said the campaigns won't want to lose the goodwill of board members by forcing them to rule on the same question repeatedly.
Several members made clear in a hearing Friday they wouldn't have patience for weak challenges.
"The danger for both candidates is that meritorious challenges are going to get swamped in a sea of frivolous challenges," Ramsey County Judge Edward Cleary warned. "You know when they're frivolous; we know when they're frivolous. Don't make us tell you that."
Smiley faces near their choices
Foley didn't expect challenges based on oddball write-ins for cartoon characters, musicians and athletes to fare well.
"I think that will be looked on with disfavor," he said of the voters who wrote in Mickey Mouse or his pals Donald Duck and Goofy on ballots where there was a clear Senate vote. Tiger Woods, Bob Dylan and The Beatles got a few votes for local offices, and Jesus was several voters' pick for president. Others scribbled or put smiley faces near their choices.
Though ballots can't be rejected if they are slightly soiled or defaced, voters can put their ballot at risk with a distinguishing characteristic that is seen as an attempt to identify it. But determining what constitutes an identifying mark is tricky.
Ritchie, a Democrat, said a ruling in the state's 1962 gubernatorial race recount found that the mark had to have been made with the voter's intent to identify the ballot.