Do-Over In Minnesota?

I spent some time today with Norm Coleman and one of his lawyers, talking about the election contest that is going on currently in St. Paul. In person, Norm makes his case effectively. The dilemma that he faces stems from the fact that Minnesota’s counties are not equally scrupulous in applying our election laws, as they apply to absentee ballots.

Take, for example, the requirement that the signature on an absentee ballot must be witnessed by a registered voter. In some counties, registration lists are carefully scrutinized and if the witness’s name does not appear, the absentee ballot is not counted. Other counties make no effort to check this requirement and count hundreds or thousands of technically illegal ballots. Another example is the voter’s signature: some counties check carefully to make sure that the signature on the absentee ballot looks like the one on file, while others will accept virtually anything as a signature.

It turns out, not surprisingly, that the counties that are careful about applying election laws are Republican-leading counties, while the lax ones–Hennepin, Ramsey and St. Louis–are heavily Democratic. What this means, in practice, is that thousands of votes are counted in Democratic counties that would not be counted if the same voter lived in a Republican county. Coleman observed that we hadn’t realized it until now, but every Republican who runs in a state-wide race starts with a deficit of several thousand votes for this reason.

Coleman has asked the judges to open and count ballots that are in substantial compliance with Minnesota’s statute and have exactly the same status as many votes that have already been counted. The court, however, has shown an inclination to apply the election law rigorously and exclude all ballots that are not in full technical compliance with the statute. Thus a deep irony arises: if a uniform standard of strict compliance with the absentee ballot statute is applied, Coleman wins. If a looser standard of substantial compliance with the statute is uniformly applied, Coleman also wins. The only way Coleman loses is if a strict standard is applied in Republican counties and a lax standard is applied in Democratic counties. Unfortunately, that is exactly what has happened so far.

The trial court has established standards for counting ballots under which thousands of ballots now ruled improper were counted on election day. There is no way to identify them and un-count them. (An absentee ballot has two envelopes; the outer envelope has the voter’s name on it, the inner one doesn’t. If the ballot is approved, it is opened and the inner, secret ballot is fed through a machine with the other ballots.) The logical implication is that we can never determine who actually received more properly-cast votes for Minnesota’s Senate seat, the task with which the trial court is charged.

I was skeptical when the idea of a second election was first raised, but the more I learn about the facts, the more reasonable that alternative sounds. If it really is impossible to determine which candidate received more properly-cast votes, a new election would seem to be the fairest alternative. It may, however, take Senate action to bring about that result. (Coleman’s supporters are concerned that if Franken comes out ahead in the current process, Harry Reid will seat him, while if Coleman comes out ahead, Reid will order a new election.)

An important policy consideration supports this result: as the system currently operates, a county’s failure to follow the law is rewarded, not punished. A Democratic-leaning county like Hennepin has every incentive to loosen the rules, not check on witnesses’ registrations, etc., so as to count the maximum number of Democratic votes. If the court ratifies such lax conduct in the current proceeding, any county that scrupulously applies state law will perceive that it is merely selling its own citizens short. This is hardly to be encouraged.

All things considered, a runoff election looks like the best choice. Given the disparate standards applied by Minnesota’s counties and the extreme closeness of the race, it is too late to have a reliable tabulation of the votes.

One more thing: Coleman didn’t make this point, but Franken’s lead is but a fraction of the number of votes that were illegally cast by illegal aliens, students from Wisconsin, and so on. If only qualified voters had been allowed to cast ballots, Coleman would have won by a margin far greater than Franken’s razor-thin 225-vote lead. If Franken ultimately becomes a United States Senator, he will owe his seat to the Democratic Party’s deliberate strategy, here in Minnesota as around the country, of facilitating voter fraud by frustrating all efforts to require voter identification.

UPDATE: Michael Barone finds the argument for a re-vote persuasive and notes the precedent of the 1975 New Hampshire Senate race.

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