An unconstitutional recount?

Yesterday’s Wall Street Journal featured the column by MIchael Stokes Paulsen arguing the unconstitutionality of the Minnesota Senate recount. Professor Paulsen’s column carries the straightforward heading “The Minnesota recount was unconstitutional.”

Professor Paulsen is a distinguished scholar of constitutional law as well as my friend. He teaches at the University of St. Thomas Law School in Minneapolis, where he is Distinguished University Chair and Professor. He was previously an associate dean and McKnight Presidential Professor of Law and Public Policy at the University of Minnesota Law School. When it comes to constitutional law, he is an authority. We have glowingly cited his work several times on this site over the years.

Professor Paulsen bases his argument on Bush v. Gore. Indeed, most of his column summarizes the case and its holding (“the need to treat all votes equally”). When it comes to the Minnesota recount — the heart of the column — Professor Paulsen limits his argument to a few short paragraphs. He principally charges that the recount treated ballots inconsistently:

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.

These “inconsistencies” lump together a variety of issues that require separate analysis. I believe the clerical error cited by Professor Paulsen, for example, was corrected during the canvas immediately following the election. The error was corrected to provide an accurate tabulation of the votes cast. I am not aware of any other such alleged errors being treated differently or of these corrections (there were more than one) raising a legal issue.

The other “inconsistencies” referred to in this paragraph occurred during the recount. Without going into the details of the underlying incidents — details with which Professor Paulsen appears to be unfamiliar — they can be reconciled under the general principle that all legally cast ballots should be counted.

Professor Paulsen’s statement regarding the 25 precincts alludes to the possible double counting of absentee ballots. Legally cast ballots should be counted once, not twice. Professor Paulsen does not mention that the Minnesota Supreme Court reserved the issue of double counting for consideration in the election contest that follows the recount. The Court held that the Canvassing Board was not the appropriate forum for the resolution of the double counting issue raised by Senator Coleman. (The Court’s December 24 order is accessible here in PDF and here in html.)

Professor Paulsen next turns to another decision rendered by the Minnesota Supreme Court in the recount:

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.

If Messrs. Franken and Coleman agreed, an absentee ballot could be counted. Either campaign could veto a vote. Dean Barkley of the Independence Party, who ran third, was not included in this process.

Thus, citizens’ right to vote — the right to vote! — was made subject to political parties’ gaming strategies. Insiders agree that Mr. Franken’s team played a far more savvy game than Mr. Coleman’s. The margin of Mr. Franken’s current lead is partly the product of a successful what’s-mine-is-mine-what’s-yours-is-vetoed strategy, and of the Coleman team’s failure to counter it.

In “A solution worse than the problem” and in other posts, I have criticized the Minnesota Supreme Court decision as jerry-rigged and lacking any basis in Minnesota law. But it does not conform to Professor Paulsen’s description. (The decision is accessible here in PDF and here in html.)

In the December 18 decision, the Court predicated the counting of allegedly improperly excluded absentee ballots on the agreement of local election officials and the parties (i.e., Coleman and Franken). Only in cases where election officials and the parties agreed that the absentee ballots had been rejected improperly were they to be included in the recount. The Court accordingly did not leave “the decision as to which votes to count to the two competing campaigns.”

The Court did leave other absentee ballots identified by local election officials as improperly rejected out of the recount if both Coleman and Franken did not agree to their inclusion. These absentee ballots can still be included in the election contest if in fact they were legally cast under Minnesota law. Senator Coleman has also identified more than 600 absentee ballots that were excluded by local election officials who stand by their decision to exclude them. Senator Coleman is raising the exclusion of these absentee ballots in the election contest.

I disagree with some of the decisions made by the Canvassing Board and the Minnesota Supreme Court during the recount. I think I would have decided differently if I had been on the Canvassing Board or the Court. If in fact the Canvassing Board and the Court erred on occasion, however, it is important to note that they did not do so out of partisan or venaI motives. They did not undertake to steal the election for Franken.

I agree with Professor Paulsen that the Canvassing Board and the Court may have erred on occasion during the recount. I emphatically agree with Professor Paulsen’s derogation of the Coleman campaign’s performance during the recount. See my post “Overtime in the Minnesota Senate election.” But I don’t yet see the constitutional defects that Professor Paulsen has identified.

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