Blogging Break

Happy Holidays to all. Blogging will be irregular, possibly nonexistent, until January 5.

Oops

President Bush issued some pardons on December 23, but on December 24, he announced that he was revoking one of them that had caused some outcry and submitting it to his Pardon Attorney for further study. A Justice Department official stated that the President can pull back a pardon until it is delivered to the person who requested it. Is that right?

Amazingly enough, it seems that it is. In United States v. Wilson, 32 U.S. 150 (1833), the Supreme Court stated that "A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance." So the pardon must not only be delivered, but accepted by its subject, before it takes effect. The Court explained that pardons may be conditional, and the subject might prefer to reject the pardon rather than accept the conditions.

The case, and subsequent cases citing it, have been directed more to the question of whether the pardon must be accepted, than to whether it must be delivered, before being effective. Every now and then the subject of a pardon decides he'd rather not be pardoned. So the acceptance question comes up. It's tough to find a case in which the subject was happy to accept the pardon but the issue was whether the pardon had been delivered.

Still, Wilson says that the pardon must be delivered. So assuming that the President had signed the pardon, but that it had not been delivered, it would appear that he still has the power to pull it back. Kind of a silly rule -- it's hard to see what it can lead to besides the kind of embarrassment that's occurring right now. If the President wants to check whether a pardon would lead to a public outcry he could always announce a day or two in advance that he was thinking of pardoning somebody, and see what happens. Once the President signs the pardon, that should be it. But apparently it's not.

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.

0.002%

Al Franken's lead in the Minnesota Senate race is 251 votes right now, but, according to informal counts, after the Minnesota State Canvassing Board accounts later today for vote challenges withdrawn by the two campaigns, Franken will still be ahead, but by just 48 votes. In case you're counting, 48 votes out of 2.4 million votes cast for the two main candidates is a lead of 0.002% -- that's 1/500 of 1%.

Moreover, today's meeting will not end the counting. Still to be resolved are claims by the Coleman campaign that some votes were accidentally counted twice, and how to deal with perhaps 1600 absentee ballots that may have been improperly rejected. There's a long way to go.

I remarked before that where the vote totals are separated by less than 1/100 of 1%, there just doesn't seem to be a way to determine the winner accurately. Obviously that observation applies all the more to vote totals separated by 1/500 of 1%. I'm ready to assume that all five members of the State Canvassing Board are acting in perfect good faith and doing their very best to count every vote with perfect honesty and accuracy. But after watching them squirrel through piles of ballots last week in a moment of confusion, I am hard pressed to believe that they are noting every decision and getting everything right, not just most of the time, but more than 99.998% of the time.

Normally, if people doing some kind of drudgework -- like counting vote after vote after vote -- made a mistake only one time in every 10,000, you'd probably think they were doing a great job. Counting 9,999 votes accurately and accidentally putting just one in the wrong pile seems like excellent work to me. But in this case, mistaking one vote out of every 10,000 would result in 240 incorrectly counted votes -- five times the margin of victory. Of course the mistakes might tend to cancel each other out (if they were random mistakes, that would often be the case), but if the mistakes were even slightly the result of a (possibly unconscious) bias in favor of one of the candidates, they could totally overwhelm the honest difference in the vote totals.

I'm not envying the Canvassing Board their jobs. And the worst of it is, even when they finish (if they ever do), there's still a potential court challenge and a potential Senate challenge.

Infighting Warrior

W. Mark Felt, better known as Deep Throat, the anonymous source behind the Washington Post's Watergate stories in the 1970s, died yesterday. We at GW Law School take special note. Felt graduated from GW Law School in 1940.

When Felt revealed his identity in 2005, the most interesting thing, I thought, was the reason behind his decision to inform. He didn't expressly say so, but it seemed to me that Felt acted partly out of patriotism and a sense that the President and his top aides were wrongdoers who deserved to be denounced, and partly as a tool of bureaucratic infighting. Felt was the No. 2 official at the FBI, and the President and the administration were, he believed, subverting the Bureau's investigations in the Watergate breakins. And there was possibly a touch of personal revenge: Felt had been passed over for the post of FBI Director in 1972.

It was a fascinating insight into how reporters do their work. Where do they get the anonymous sources for those blockbluster stories? The Deep Throat experience suggests that, whatever controversial policy the administration is pushing, whatever crime it's committing, there's somebody, somewhere on the inside, who doesn't like it and who would blow the whistle on it. A combination of noble desire to do the right thing, plus bureaucratic desire to win the policy war, plus perhaps a bit of personal desires as well, opens someone up. The reporter's job is to find that person.

MN Mayhem

I'm watching the live stream of the Minnesota State Canvassing Board recounting individual ballots. (I'd give you the link, but they'll be done by the time you click on it.) The Board is confused about whether they've resolved a challenge to a particular ballot already. Three members of the Board were just standing over piles of ballots, flipping them over and putting them in different piles. Now Coleman's attorney is arguing about whether they resolved the challenge yesterday or not. Now both attorneys are standing up with the Board watching them dig through piles of ballots.

How can this possibly all be done correctly? The Board's been running through challenges all day -- I watched a bit earlier -- and they do most of them in about 20 seconds or less, and the results are noted down somewhere, but now they're arguing about which challenges have been resolved, whether the results have been properly noted down, which notations are typos, and so on.

In a race that's currently separated by about 40 votes (as counted by the MN Star Tribune), it just seems impossible that they're going to resolve it accurately with all this chaotic counting going on. Even if all the challenges are accurately resolved, I don't see how they can accurately tabulate the results.

Judicial Restraint

The Illinois Supreme Court has denied the state Attorney General's request to remove Governor Rod Blagojevich from office on an emergency basis or to temporarily strip him of many of is powers. But the Court denied the requests "without comment" -- it hasn't even bothered to post the order on its own website (I suppose it might be up by the time you click) -- so it's a little hard to say what's really going on. It's not clear from the reporting whether the Court agreed with my analysis that it lacks power to remove the Governor for political or even criminal misdeeds (I'm sure this blog is highly influential in Illinois judicial circles) or whether the Court has merely denied the Attorney General's request for immediate relief, while retaining the potential for the case to move forward more slowly.

I'm guessing the Court doesn't want any part of the controversy. But if the Court thinks there's no legal basis for it to act in this kind of situation, it should say so.