Minnesota Senate recount, update XIII

Yesterday the Minnesota Supreme Court heard oral argument in Senator Coleman’s petition to review the Board of Canvassers’ “recommendation” that the one hundred plus counting locations throughout the state sort and count previously rejected “fifth pile” absentee ballots. (John Hinderaker explained what the “fifth pile” is all about here.)

Over the weekend I characterized the board’s action as opening Pandora’s box. St. Paul Pioneer Press reporter Rachel Stassen-Berger characterized the board’s action similarly, but a little more colorfully: “Can. Worms. Opened.”

Unfortunately, Minnesota Supreme Court Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson have recused themselves from the recount-related proceeding before the Supreme Court. Why? Because they are members of the Board of Canvassers whose “recommendation” is the subject of review before the Supreme Court.

That reduces the Supreme Court to its five remaining members. Among those five, my guess is that Justice Paul Anderson may well be the critical swing vote.

Roger Magnuson represents Senator Coleman in the Supreme Court proceeding. Roger is a professional friend and perhaps the most prominent member of the Minnesota bar. His standing is such that he represented the Florida Senate in Bush v. Gore, an experience that gave rise to the climactic chapter of Roger’s 2007 book Barracuda Bait.

Here is how the Star Tribune describes Justice (Paul) Anderson’s reaction to Roger Maguson’s argument in the Supreme Court yesterday:

The hearing in a packed room began with Justice Paul Anderson testily responding to Roger Magnuson, the lead attorney for Coleman, who compared Minnesota’s recount to the 2000 presidential election dispute that focused on the counting of ballots in Florida. “This is not Florida,” said Anderson.

“This is not Florida” in part because of the care taken by the Board of Canvassers in the disposition of challenged ballots. It would be more accurate, however, to say that “this is not Florida yet.” It is not Florida yet because the Minnesota Supreme Court has not yet blessed the chaos that will ensue from the Canvassing Board’s “recommendation” regarding “fifth pile” absentee ballots.

Justice Anderson seems not to have registered this point, or to reject it. He doesn’t seem to understand that it is now his responsibility to assure that Minnesota “is not Florida.” His “testiness” on this point is not a good sign. (For a fuller account of the hearing, see Jay Weiner’s MinnPost report.)

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