. . . And Counting

Are you wondering what's happened to that Minnesota Senate recount? The answer is that it's dragging on. The three-judge court hearing the case is receiving hundreds of pieces of evidence and the two sides want to call lots of witnesses -- perhaps even officials from all of Minnesota's 87 counties. One of the judges has said that the court will "make sure that every legally cast and wrongfully rejected ballot is opened and counted," but when and how that will happen is unclear.

The trial illustrates some of the difficulties of judicial review of administrative action. Judicial review is an important, indeed essential, step in the process. Without it, administrative agencies can and may do anything they want, without regard to legality. But judicial review can be a mess. Hundreds of officials were involved in the initial recount, which took weeks. Chaotic as it was, it at least had some semblance of a standardized process -- because it was conducted by the agency charged with doing it. Everyone worked hard, ballots were painstakingly considered, and a result achieved.

Now the whole thing is in the hands of three judges who, as far as I can tell, have no particular expertise in election matters. There's no standardized process for their reconsideration of the election. These three judges get to reconsider the efforts of hundreds of election officials. One can see why some scholars suggest judicial review causes more trouble than it's worth.

Well, the above picture is somewhat idealized. In fact, the agency consideration wasn't so pristine in this case. The "standardized" process involved things like sometimes accepting the election day count (when an envelope full of ballots was lost), and sometime not. Inexpert judges sat on the state canvassing board. So perhaps the agency process was not so different from the judicial review process.

But at least there was something like a dedicated agency process. The state elections expert -- the Secretary of State -- headed up the board.

I've previously stated my view that there's probably no way to really know who won this election. Every new level of tinkering with it decreases my confidence in the result. I adhere to my basic belief in the value of judicial review, but it's hard to see how much it can help here.