Opinion Journal
APRIL 18, 2009
Minnesota's Missing Votes
Some Senate absentee ballots are more equal than others.
Meanwhile, back in the Minnesota Senate recount, the three-judge panel reviewing the race has declared Democrat Al Franken the winner. Republican Norm Coleman intends to appeal to the state's Supreme Court, while Democrats and the press corps pressure him to surrender. We hope Mr. Coleman keeps fighting, because the outcome so far hangs on the fact that some votes have been counted differently from others.
Even after the recount and panel-findings, the 312-vote margin separating the two men equals about .01% of the 2.9 million votes cast. Even without any irregularities, this is as close to a "tie" as it gets. And there have been plenty of irregularities. By the end of the recount, the state was awash with evidence of duplicate ballot counting, newly discovered ballots, missing ballots, illegal voting, and wildly diverse standards as to which votes were counted. Any one of these issues was enough to throw the outcome into doubt. Combined, they created a taint more worthy of New Jersey than Minnesota.
The Coleman camp pushed for resolution of these problems during the recount, but it was stymied by a state canvassing board that cared more about preserving its "Minnesota nice" reputation than about making tough calls. The state Supreme Court also punted difficult questions. The mess then landed with the three-judge panel overseeing Mr. Coleman's contest trial, a panel that seemed out of its depth.
Case in point: the panel's dismal handling of absentee ballots. Early in the recount, the Franken team howled that some absentee votes had been erroneously rejected by local officials. We warned at the time that this was dangerous territory, designed to pressure election officials into accepting rejected ballots after the fact.
Yet instead of shutting this Franken request down, or early on issuing a clear set of rules as to which absentees were valid, the state Supreme Court and the canvassing board oversaw a haphazard process by which some counties submitted new batches to be included in the tally, while other counties did not. The resulting additional 933 ballots were largely responsible for Mr. Franken's narrow lead.
During the contest trial, the Coleman team presented evidence of a further 6,500 absentees that it felt deserved to be included under the process that had produced the prior 933. The three judges then finally defined what constituted a "legal" absentee ballot. Countable ballots, for instance, had to contain the signature of the voter, complete registration information, and proper witness credentials.
But the panel only applied these standards going forward, severely reducing the universe of additional absentees that the Coleman team could hope to have included. In the end, the three judges allowed only about 350 additional absentees to be counted. The panel also did nothing about the hundreds, possibly thousands, of absentees that have already been legally included, yet are now "illegal" according to the panel's own ex-post definition.
If all this sounds familiar, think Florida 2000. In that Presidential recount, officials couldn't decide what counted as a legal vote, and so different counties used different standards. The Florida Supreme Court made things worse by changing the rules after the fact. In Bush v. Gore, the U.S. Supreme Court ruled that this violated Constitutional principles of equal protection and due process, which require that every vote be accorded equal weight.
This will be a basis for Mr. Coleman's appeal to the Minnesota Supreme Court. Should that body be reluctant to publicly rebuke their judicial colleagues who sat on the contest panel, Mr. Coleman could also take his appeal to federal court. This could take months.
Another solution is to hold a special Senate election. Minnesota law does not specifically provide for such a runoff. However, the U.S. Constitution's 17th amendment does provide states with a roadmap for filling "vacancies," which might be a legal starting point for a do-over. Even before the shifting standards of the contest trial, the St. Paul Pioneer Press looked at the ballot-counting evidence and called for a revote. It could be that this is where the court case is leading in any event.
Democrats want to portray Mr. Coleman as a sore loser and make the Republican worry that he will ruin his chances for other political office. But Mr. Coleman has a legitimate grievance that not all votes have been treated equally. If the Franken standard of disparate absentee-voter treatment is allowed to stand, every close election will be settled by a legal scramble to change the vote-counting rules after Election Day. Minnesota should take the time to get this one right.
Franken
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