A solution worse than the problem

RealClearPolitics has posted a column proposing a solution to “Minnesota’s recount fiasco” by AEI director of economic studies Kevin Hassett. Hassett observes the inconsistent rulings on disputed ballots made by the Board of Canvassers. He notes that the rulings tended to favor Franken, as have other issues addressed by the Board.

Hassett’s solution? “[T]he candidates should agree to a process that recognizes the partisan enmity that has been stoked during the recount, and appoint a bipartisan panel to resolve it.” He floats the names of Bob Dole and Donna Shalala to make up a panel that would rule on the disputed ballots.

Hassett casually derogates the work of the Board of Canvassers as “controlled by Democrats.” He fails to note that four of the five members of the Board are judges and that there has been little if any visible partisan division among the Board members. He also fails to quantify the number of ballots affected by the inconsistencies he observes. The Coleman campaign brought only 15 or 16 such challenged ballots to the attention of the Board at the conclusion of the ballot by ballot review.

It appears to me that the inconsistencies noted by Hassett derive from the Board never having articulated or applied uniform principles to the disposition of challenged ballots. Rather, each was ruled on individually on a case by case basis. Perhaps underlying partisan views colored the inconsistencies that resulted. The process was imperfect.

Nevertheless, Hassett’s solution is no better and could be worse. It might impose a superior consistency on the disposition of challenged ballots. But it runs roughshod over Minnesota law that provides the statutory recount process that is running its course.

The Senate might choose not to seat the winner certified under Minnesota law at the end of the process, but no one to my knowledge has the authority to set aside the process established by Minnesota law in favor of a jerry-rigged panel of superannuated politicians. Even assuming Dole could hold his own with Shalala, who in any event would be the tiebreaker on Hassett’s proposed panel?

Hassett implies that his solution would circumvent judicial proceedings regarding the challenged ballots. Minnesota law allows for an election contest to follow the recount. The election contest is a judicial proceeding conducted before a panel of three judges appointd by the Chief Justice of the Minnesota Supreme Court. An election contest would take up the other issues to which Hassett alludes, one of which (alleged duplicate ballots) the Minnesota Supreme Court has already reserved for the contest phase of the proceedings.

The recount has been transparent and orderly. Despite the tenor of Hassett’s concluding remarks, the recount has neither reflected nor given rise to partisan rancor, although it may yet do so on the issue of allegedly “improperly rejected” absentee ballots. On this issue the Minnesota Supreme Court has sought to improvise a solution that, like the one Hassett urges in his column, lacks any warrant in Minnesota law.

The problem reflected in the Minnesota recount is the closeness of the outcome. It was a virtual tie. One of the candidates is going to lose. Minnesota law mandates a recount and establishes a reasonable process to provide it, subject to judicial review. Bob Dole and Donna Shalala do not have something better to offer and would not confer any greater legitimacy on the outcome.

Hassett does not directly address the role in the process played by the man from ACORN — Minnesota Secretary of State Mark Ritchie. Ritchie is the chair of the Board of Canvassers. As I observed in “Minnesota’s recount goes south,” Ritichie appears to me to have shared information and coordinated communiciations with the Franken campaign.

Assuming my inferences regarding Ritchie are correct, his behavior is innappropriate to the role he is assigned to play in the process. Yet the press has been remarkably incurious about Ritchie’s coordination with the Franken campaign. Anyone seeking to contribute to a fair resolution of the Minnesota recount would perform a public service doing some digging and shining a spotlight on the activities of Secretary Ritichie.

UPDATE: A Minnesota friend writes:

I was a “floor lead” for the entire Dakota County recount, all seven days, from morning until all left in the evening. I watched the rules change through the process. The first changes appeared on day 1. At first counters were to count duplicate ballots; then originals; then a couple of days later, the two parties were to agree on which ballots to count: duplicates or originals. So the system was inconsistent from the beginning.

It appeared that the communications between the Franken team and the Secretary of State was very good. It also appears that no one in the Coleman camp challenged this. I said from the beginning, “If they count the ballots that were done on election night, Coleman will win.” Once the rules started changing, I lost confidence in the process.

The Minnesota media have performed miserably in connection with the recount. There are many stories here waiting to be written by anyone who can turn over a few rocks.

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