Minnesota Recount: A do-over?

posted at 2:41 pm on March 2, 2009 by Ed Morrissey

Michael Barone looks at the mess that the Minnesota recount and the contest panel has wreaked on the Senate race, and wonders if we should scrap the whole thing.  With invalid ballots hopelessly commingled into the results — judged so by the contest panel — the result appears custom-made for overturning by a Supreme Court guided by its own thinking on Bush v Gore:

Will the Minnesota Senate race end up in the U.S. Supreme Court? Here’s an article saying it might. Gov. Tim Pawlenty says Sen. Norm Coleman has “a plausible chance, a decent chance” to prevail. He says a second election is “highly unlikely” under Minnesota law. But couldn’t that law be changed?

My understanding is that the legal case currently before a three-judge panel is hopelessly compromised. Previous rulings in different counties have been inconsistent, with ballots with one kind of alleged defect counted in some counties and ballots with the same kind of alleged defect not counted in others. Most of the inconsistent rulings have tended to favor Democratic-Farmer-Labor Party candidate Al Franken, which is why he has overcome the lead Coleman had when the votes were being tabulated in November. Some allegedly defective ballots have been counted and then commingled with others, so that the decision to count them cannot as a practical matter be reversed. This would seem to me to raise equal-treatment problems as described in Bush v. Gore , even if the Supreme Court tries to say that Bush v. Gore was a one-of-a-kind case and not really precedent.

Unfortunately, as Minnesotans have discovered, Bush v Gore was not a one-off.  The fatal flaw for the process, as opposed to the recount strategies of the Coleman and Franken camps, was the decision to leave the validity of absentee ballots to the campaigns and not the state itself during the recount, which should never have addressed that issue in the first place.  Franken’s complaint about invalidly rejected absentee ballots should have been passed to an election contest, not the recount.  Recounts should only count the ballots approved as legitimate on Election Night, and such a count would have certified Coleman the winner before an evitable contest addressed the valid question of inconsistent treatment of absentee ballots across the state.

Now the results are hopelessly flawed.  The absentee ballots that got counted in the recount while having the exact same characteristics as those now rejected for counting by the contest panel cannot be identified.  They have been tossed into the same piles as the rest of the counted ballots, with no identification to quarantine them back out.  The contest panel has no way to remedy the problem in a consistent manner, save for rejecting the recount altogether as invalid and restoring Election Night totals to determine the winner.

Any solution reached by the contest panel will lack any sort of legitimacy at all with a wide swath of the Minnesota electorate.  At this point, a special election seems the best possible solution, either in a run-off between Franken and Coleman or an open election.  Unfortunately, the state legislature would have to act to mandate it and to invalidate the election results, and as long as Al Franken leads, the DFL-dominated legislature in St. Paul will sit on their hands.

Would a special election be a slam-dunk for Coleman?  Barone doesn’t think so, especially in an open election.  Without Obama on the top of the ticket, though, Franken probably doesn’t have good odds, but his organization might prove superior enough to make a difference.  I’d guess Coleman would gain the most votes in a run-off — which is another reason why the legislature won’t act to provide one.


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I’d guess Coleman would gain the most votes in a run-off — which is another reason why the legislature won’t act to provide one.

Absolutely. What a mess.

OmahaConservative on March 2, 2009 at 2:46 PM

Why not let Blaggo decide………..?

Cinday Blackburn on March 2, 2009 at 2:47 PM

Nothing learned from Florida…

right2bright on March 2, 2009 at 2:49 PM

Minnesota better watch out or you guys are going to have the Carter Center monitoring all of your future elections.

myrenovations on March 2, 2009 at 2:49 PM

Wonder if this will be resolved by the time the next election rolls around. I kinda dont think so.

becki51758 on March 2, 2009 at 2:49 PM

All anyone ever seems to came about nowadays is power.

Does any one care about the voters? Nope, it’s all “How can I rig the game in favor of my guy”.

Same with discussions about Republican opposition to the bailout/stimulus.

Is it ever “What’s best the the country” and then vote that way regardless of the political consequences? No it’s all “how do we get back in power.”

Sackett on March 2, 2009 at 2:49 PM

No it’s all “how do we get back in power.”

Sackett on March 2, 2009 at 2:49 PM

Nah, this is more like, how do we keep Franken from getting any power…

myrenovations on March 2, 2009 at 2:51 PM

The answer is simple…Repeal the stupid liberal 17th Amendment. Problem solved. Not to mention … no more blago or Carolyn Kennedy drama.

lm10001 on March 2, 2009 at 2:52 PM

“How can I rig the game in favor of my guy”.
Democrats wrote the book on this too. Just watching this Minnesota election should be proof of that. Minnesota voters need to take their state back,no matter what the Party in power, and quickly.

jeanie on March 2, 2009 at 2:54 PM

So what’s the solution here? Pawlenty says a second election unlikely. The current election returns are “hopelessly flawed” by inconsistencies. The ultimate winner will have zero legitimacy……

Minnesotans can’t possibly be happy with the situation and, let’s face it, the SCOTUS is so liberal these days that Franken will be handed the election with long legal treatise that essentially forces the state to issue an apology to the filthy liar for taking so long to give him yet another Senate vote he can use to dismantle America.

March 1st and no clear resolution is an unsatisfactory outcome no matter what. The state officials involved should be ashamed of themselves and resign in disgrace.

highhopes on March 2, 2009 at 2:54 PM

You guys in MN are hosed.

juanito on March 2, 2009 at 2:55 PM

Obama should pick a Minnesota Czar to take care of it.

zmdavid on March 2, 2009 at 2:55 PM

Nothing learned from Florida…

right2bright on March 2, 2009 at 2:49 PM

To the contrary, Florida provided excellent lessons in how to throw into doubt close elections by creative accounting of absentee and discarded ballots. Franken’s people learned these lessons well.

I say just give the seat to the lizard people and be done with the whole mess.

highhopes on March 2, 2009 at 2:57 PM

To the contrary, Florida provided excellent lessons in how to throw into doubt close elections by creative accounting of absentee and discarded ballots. Franken’s people learned these lessons well.

I say just give the seat to the lizard people and be done with the whole mess.

highhopes on March 2, 2009 at 2:57 PM

I stand corrected, something was learned…just the wrong lesson.

right2bright on March 2, 2009 at 2:59 PM

Thank you, Minnesota.
Sure, Florida holds the title for screwing up elections, … but you’re gaining on us, quickly.

JRDFLA on March 2, 2009 at 3:00 PM

Every day that goes by without Al Franken in the Senate is another small victory for Lizard People everywhere…

Bruno Strozek on March 2, 2009 at 3:03 PM

Bush v. Gore imposed a remedy that simply stopped recounting. SCOTUS will be loathe to order a do-over election as a remedy, because the precedent will wreak havoc on future presidential elections. The federal courts may remand the matter back to MN and order them to treat all votes equally. But when MN certifies that it has given each vote equal consideration (whether it’s true or not), the federal courts will not interfere further. The long term solution is that more states need to adopt GA’s rule requiring a runoff when no candidate wins a majority.

Mark30339 on March 2, 2009 at 3:04 PM

Nothing learned from Florida…

right2bright on March 2, 2009 at 2:49 PM

Maybe, maybe not.
If you can’t win the election outright, so contaminate it that it has to be thrown out.
Maybe you can win the do-over.

MarkTheGreat on March 2, 2009 at 3:14 PM

Sure, Florida holds the title for screwing up elections, … but you’re gaining on us, quickly.

JRDFLA on March 2, 2009 at 3:00 PM

Oh! I think Florida is out of the doghouse at this point.

Florida 2000 was ugly but there was forward momentum from the very beginning and the President was seated on time in late January. MN has seemingly no clue how to even proceed from this point. There isn’t even clear legal issues to be resolved as to what constitutes a valid ballot or how to resolve challenges to disputed ballots. There is talk about a SCOTUS case but even that is discussed in vague terms.

Fact of the matter is that the system in MN (and probably other states that are acting just as smug as MN was when this all started) is broken. While the lizard people are probably out of it, Coleman and Franken really have equally legitimate legal positions without anybody in authority to definitively resolve the inconsitencies in how the returns were tabulated. If Pawlenty is correct that MN can’t hold a special election, this is headed to the SCOTUS at some indefinite position in the future whenever the state gets done futzing around with the problems.

highhopes on March 2, 2009 at 3:15 PM

The long term solution is that more states need to adopt GA’s rule requiring a runoff when no candidate wins a majority.

Mark30339 on March 2, 2009 at 3:04 PM

Even safer, require a win by a statistically significant amount.

say 0.5% or maybe 1%

MarkTheGreat on March 2, 2009 at 3:17 PM

Can we have an open thread on Rush taking Michael Steele and the GOP leaders to the woodshed this afternoon? Alot of us are, well, dying for it, so to speak.

BigD on March 2, 2009 at 3:19 PM

Two good things come of this mess.

1) SoS Mark Ritchie won’t be able to make an argument that he was an improvement over previous management in his position; and

2) The dearly-held local notion that Minnesota was somehow different and better than other states in re: political corruption is now completely blown away. Power politics, of the sort that Franken perpetrated in the recount, works just as well here as it does in Chicago. The only difference is that we get more angsty about it.

Mr. D on March 2, 2009 at 3:31 PM

Yeah. with the Democrats pulling out their “emergency reserve ballots”, this whole thing is a big sham. Coleman might not win a special election, but I would feel better either way if they had one. Of course, there is no guarantee that in case of a close vote, we don’t have this whole thing over again.

crosspatch on March 2, 2009 at 3:33 PM

DO OVER! DO OVER! DO OVER! Why Not? Money? It’s okay we are printing more, we can bail you out, Lizard People unite:)LMAO

Dr Evil on March 2, 2009 at 3:48 PM

Can you start a recall petition when the object of the recall is ‘to whom it may concern’?

trigon on March 2, 2009 at 3:48 PM

Do-over at this point is probably the only honorable thing to do. They have pissed in the pot for so long, it’s all putrid.

tarpon on March 2, 2009 at 3:53 PM

Two good things come of this mess.

Mr. D on March 2, 2009 at 3:31 PM

He shoots, he scores!

Bruno Strozek on March 2, 2009 at 3:55 PM

Minnesota better watch out or you guys are going to have the Carter Center monitoring all of your future elections.
myrenovations on March 2, 2009 at 2:49 PM

The bottom line is that in all likelihood, Coleman is going to be pressured into conceding the election. He’s behind on the recount and he’s ended up having to do quite a lot of legal maneuvering to try and claw that back. The public is patient, but you can’t have that Senate seat sit vacant for a year, nor can you have the U.S. Supreme Court deciding the election. And because Franken is the “declared” winner as the result of the f—ed up recount, the pressure will naturally fall to Coleman to resign.

But I think that Coleman and the Minnesota GOP need to leverage this to change Minnesota law. If I was Coleman, I wouldn’t resign until they change the law to provide for run-off elections for all future elections. Then, the Minnesota GOP can spend the next 5 years talking about how Franken is illegitimate.

Outlander on March 2, 2009 at 4:00 PM

Franken will be the next Senator. The current count is not going to change. In a run-off between the two, former Senator Coleman would get a minimum 57% of the vote. Why? 12% or would come from the people who voted 3rd party but would vote for former Senator Coleman rather than Franken. Some number less than 1% will not show up in Franken’s total and these would be the ones that voted at least twice because early voting was not controlled in some precincts and the supervising officials were not capable of catching this because who knows for sure it was a new process and had bugs.

rsl775 on March 2, 2009 at 4:14 PM

Minnesota should be permanently penalized one electoral vote.

As long as they don’t give it to D.C.

connertown on March 2, 2009 at 4:37 PM

Of course they wont do the logical thing and do it over. This is Minnesota, where stupidity reins supreme.

csdeven on March 2, 2009 at 5:22 PM

If they’d taken my advice, the special election for senator would be over now.

GarandFan on March 2, 2009 at 6:23 PM

I would love a recount.

Without Obama on the ticket, the Obama-voting blacks will stay home.

Voila! Win for Coleman, just like the re-vote down south happened with the Republican large-margin win.

Just my thoughts.

13Girl on March 2, 2009 at 6:39 PM

I still say this
Com – on you liberal morons..

And the rip off republicans

I amn sick to death of both of your sorry asses

EVER heard of EXCELL??

Cant you IDOTS
a. count out how many valid registered voters there were
b. count how many valid votes you recied
c. account for every one
d. count them (again using excell)
e. figure out the winner?

Absolute FRIGGIN MORONS..

jcila on March 2, 2009 at 7:32 PM

@jcila on March 2, 2009 at 7:32 PM

aaahhhhh. . . nah – you know, i won’t. it just doesn’t seem fair.

MogenDavid on March 2, 2009 at 7:48 PM

The long term solution is that more states need to adopt GA’s rule requiring a runoff when no candidate wins a majority.

Mark30339 on March 2, 2009 at 3:04 PM

Even safer, require a win by a statistically significant amount.

say 0.5% or maybe 1%

MarkTheGreat on March 2, 2009 at 3:17 PM

A further improvement I would be to add “none of the above” to the ballots, and if it win a new election with an entirely new set of candidates.

darktood on March 2, 2009 at 8:06 PM

Coleman rests his case.

Seat Frankin.

getalife on March 2, 2009 at 8:16 PM

13Girl on March 2, 2009 at 6:39 PM

That was exactly what I was thinking. Democrats will only come out in cold weather to protest Global Warming. Where as the Republicans will vote to keep the Senate from becoming Filibuster proof. Turns out Republicans pay attention to who is running Congress and stuff, SEE: How Obama Got Elected;)

Dr Evil on March 2, 2009 at 10:19 PM

Pawlenty must lead in this situation. Declare the “results” hopelessly flawed and unacceptable to both the candidates and the voters. Remind the voters of his Constitutional responsibility to temporarily fill the open Senate Seat, and appoint a Republican – not Coleman – until a Special Election is held for Coleman and Franken.

This would provide Minnesota with full Senate representation, and it wouldn’t be long before the state legislature scheduled a special election.

Oh… and Pawlenty should warn Reid not to interfere in this process.

T J Green on March 2, 2009 at 10:49 PM

The difference between a duel and a trial is that in a duel, the contestants decide the outcome; in a trial, impartial judges and juries decide the outcome. A duel is not considered due process.

If there is a new election, some Obama voters may get buyer’s remorse and go for the GOP.

njcommuter on March 3, 2009 at 7:13 AM