The Coleman-Franken Recount Trainwreck?
Most political junkies here in Minnesota initially had positive reactions to the physical recount in the Coleman-Franken race. Later, they started thinking of it as the battle over who could question the validity of their opponent’s votes. Still later, they saw the inconsistencies in the Canvassing Board’s rulings. Now we’re heading for the election contest phase. Michael Stokes Paulsen has written an op-ed in this morning’s WSJ in which he says that the recount isn’t constitutional. Here’s his explanation why it isn’t constitutional:
This is Florida 2000 all over again, but with colder weather. Like that fiasco, Minnesota’s muck of a process violates the Equal Protection Clause of the U.S. Constitution. Indeed, the controlling Supreme Court decision is none other than Bush v. Gore.
Remember Florida? Local officials conducting recounts could not decide what counted as a legal vote. Hanging chads? Dimpled chads? Should “undervotes” count (where a machine failed to read an incompletely-punched card)? What about “overvotes” (where voters punched more than one hole)? Different counties used different standards; different precincts within counties were inconsistent.
The Florida Supreme Court intervened and made things worse, ordering a statewide recount of some types of rejected ballots but not others. It specified no standards for what should count as a valid vote, leaving the judgment to each county. And it ordered partial recounts already conducted in some counties (but not others) included in the final tabulation. The result was chaos.
By a vote of 7-2, Bush v. Gore (2000) ruled that Florida’s recount violated the principle that all votes must be treated uniformly. Applying precedents dating to the 1960s, the Court found that the Equal Protection Clause meant that ballots must be treated so as to give every vote equal weight. A state may not, by “arbitrary and disparate treatment, value one person’s vote over that of another.” Florida’s lack of standards produced “unequal evaluation of ballots in several respects.” The state’s supreme court “ratified this uneven treatment” and created more of its own, and was unconstitutional.
To say that each ballot hasn’t been treated uniformly is understatement. One of Mark Ritchie’s responsibilities as Minnesota’s SecState is to issue clear guidelines for each step of the recount. That didn’t happen. It wouldn’t be right to put all the blame on Mr. Ritchie’s shoulders, though.
Part of the blame for this mess is the court’s ruling that essentially gave each campaign veto power over which absentee ballots should be recounted and which shouldn’t. That’s absurd considering the clarity of Minnesota’s election laws concerning absentee ballots. There’s four things by which an absentee ballot could be rejected. That’s where the phrase fifth pile originated from.
The goal of the courts should be to bring clarity to the problems it’s confronted with. In this situation, the Canvassing Board should’ve followed the court’s ruling by doing everything legally permissable to to eliminate the possibility of partisan chicanery. It didn’t do that. The ballots that Franken’s attorneys rejected for fear that they might favor Sen. Coleman will now be ruled upon by the courts.
Though I’m not an attorney, I’ve got to believe that the courts will rule that the ballots that Franken’s attorneys improperly rejected will get counted. I also suspect that the contradictory rulings on whether to count physical ballots or count the tape produced by the scanning equipment will be resolved. If the Minnesota courts don’t get that right, SCOTUS will get it right.
You can’t count votes if there isn’t physical proof in the form of a physical ballot. That isn’t just opinion. That’s Minnesota precedent.
Consider the inconsistencies: One county “found” 100 new votes for Mr. Franken, due to an asserted clerical error. Decision? Add them. Ramsey County (St. Paul) ended up with 177 more votes than were recorded election day. Decision? Count them. Hennepin County (Minneapolis, where I voted, once, to my knowledge) came up with 133 fewer votes than were recorded by the machines. Decision? Go with the machines’ tally. All told, the recount in 25 precincts ended up producing more votes than voters who signed in that day.
Then there’s Minnesota’s (first, so far) state Supreme Court decision, Coleman v. Ritchie, decided by a vote of 3-2 on Dec. 18. (Two justices recused themselves because they were members of the state canvassing board.) While not as bad as Florida’s interventions, the Minnesota Supreme Court ordered local boards to count some previously excluded absentee ballots but not others. Astonishingly, the court left the decision as to which votes to count to the two competing campaigns and forbade local election officials to correct errors on their own.
This is a legal mess. Because of the total lack of coherence in the court’s rulings, it’s also a procedural mess.
Eventually, the courts will bring clarity to the various issues raised during the recount. Once the courts clarify things, the final, accurate recount will happen.
This is only speculation on my behalf but, based on Franken’s behavior over the last week, it’s clear that Franken realizes that he isn’t sitting in a great position. I suspect that he realizes that there’s a real chance he could lose the race.
Let’s be clear about something important here: If the courts rule according to the existing laws and precedents, the actual ballots will determine who the winner is. Neither Franken or Sen. Coleman will be able to say that the courts stole the election from them.
That’s because all properly cast ballots will have been counted.
That’s the only benchmark that’s important in clearing up this mess.
Technorati Tags: Recount, Equal Protection Clause, Al Franken, Norm Coleman, Election Contest, Bush v. Gore, SCOTUS, Constitution, Count Every Ballot, Election 2008
Cross-posted at LetFreedomRingBlog