Wednesday, December 24, 2008

Yet More Minnesota Maneuvering

I had a chance to look at the decision of the Minnesota Supreme Court regarding the absentee ballot controversy. I have to say that the dissents seem to have the better of it.

Here's the deal: the county canvassing boards reported their vote totals to the State Canvassing Board, which is now in the process of resolving challenges to what happened at the county level. But one thing that's unclear is what's supposed to happen to ballots, particularly absentee ballots, that weren't counted at all at the county level. Apparently the theory of the Coleman campaign is that the State Canvassing Board can consider a challenge to the way a vote was counted, but cannot consider a challenge to the complete rejection of an absentee ballot that wasn't even opened at the county level. Such challenges can be heard, Coleman recognizes, but only, in his view, in a "contest" held in court after the State Canvassing Board certifies a winner.

It appears that hundreds of absentee ballots may have been rejected improperly at the county level. The State Canvassing Board instructed the county boards to segregate these ballots. But Coleman then asked the state Supreme Court to order that the ballots not be opened at this stage of the proceedings.

And here's what that court came up with: it order that the ballots not be opened and counted now unless the Coleman and Franken campaigns agree that a ballot was improperly rejected. If the candidates agree on that with regard to a ballot, it shall be opened and counted.

And what is the justification for this? Minnesota statute 204C.39 provides that "A county canvassing board may determine by majority vote that the election judges have made an obvious error in counting or recording the votes for an office. " This is the section that the court held to be inapplicable -- I guess the court believes that improperly rejecting and therefore improperly not even opening an absentee ballot cannot be an "obvious error in counting or recording the votes for an office." (It's hard to be sure what the court thinks because it hasn't written up its full opinion yet -- it just issued this order in a hurry.) I guess if you don't open the ballot at all, you haven't counted or recorded it, so the court thinks you can't have made an obvious counting or recording error. OK, that sounds like an unnecessarily restrictive reading (I would say that refusing to count a valid vote is a counting error), but let's give it to them.

But then why can the ballots be opened if the candidates agree they were improperly rejected? Section 204C.38 says that "If the candidates for an office unanimously agree in writing that the election judges in any precinct have made an obvious error in the counting or recording of the votes for that office, they shall deliver the agreement to the county auditor of that county who shall reconvene the county canvassing board, if necessary, and present the agreement to it. The county canvassing board shall correct the error as specified in the agreement."

But notice that the key phrase is essentially identical in the two sections: "obvious error in [the] counting or recording [of] the votes for [an, that] office." Improperly rejecting an absentee ballot and refusing to open it either can be, or cannot be, an "obvious error in counting or recording votes." I don't see how it can be one where the candidates agree but not if the candidates don't agree. It doesn't make sense. That's the point of the dissenting opinions.

Obviously the candidates will not have the right incentives to agree on ballots. Even where the objective indications are that a ballot was improperly rejected, each candidate will be inclined to agree to have it counted only if they think it will favor their side -- and it seems like they'll have a lot of data to guide them, like the voter's name and address (how can they agree on whether a ballot was obviously improperly rejected without seeing the outer envelope, which would have this information?). So it seems unlikely that an appropriate set of the ballots will get counted under this procedure.

Also, section 204C.38 refers to unanimous agreement among the "candidates for an office." So I don't see how agreement between Coleman and Franken can be enough to justify acting under this section -- there would also need to be agreement from the other three, lesser candidates, Barkley, Aldrich, and Niemackl.

The court also cited section 204B.44 in its ruling, but I can't see how that supports the rule the court imposed.

So there's another fine mess the courts have gotten into, trying to invent rules as they go along. I remember the same thing in Florida in 2000. The state Supreme Court's first decision didn't follow the applicable statutes but tried to make up a procedure that seemed sensible in light of the circumstances. Then by the time of the court's second decision, which followed the statutory procedures to the letter, people couldn't believe the court was acting honestly.

With the votes totals separated by a hair's breadth, every little procedural ruling counts for a lot. It doesn't seem like a good idea to count improperly rejected absentee ballots only in a court contest, and it certainly doesn't seem like a good idea to invent an ad hoc procedure for counting only some of them.

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