About Damn Time

I think the Minnesota Supreme Court reads this blog. I complained yesterday about how they were taking their sweet time deciding the Minnesoat Senate election case. Well, today, they issued their decision. And about time, too.

Franken wins. It's unanimous. The decision is somewhat about legal issues, but mostly about how Coleman just hadn't proved his case. That will make further appeal difficult for Coleman.

I think Franken is going to the Senate. When a court comprised of a majority of Republican appointees rules for the Democratic candidate on primarily factual grounds, the opinion has a lot of heft. Coleman is going to have a tough time getting anywhere.

Update: It looks like Coleman reads the blog too. He has conceded.

Meanwhile, in Minnesota . . . (cont.)

Wondering what's up with that Minnesota Senate Race? I was too. The answer is, nothing. Nada, bupkis.

It's been five days since even the Minnesota Star ran a story on the race -- and all it said was "Wait is Agonizing for Coleman, Franken." How about the rest of Minnesota?

The fault lies squarely on the shoulders of the Minnesota Supreme Court, which heard argument four weeks ago and hasn't uttered a peep since.

C'mon, you MN justices! Wake up! The leisurely briefing schedule you set for the case was bad enough, but now briefing is over, argument is over, and it's time to decide. What do you think this is, a slip-and-fall case? This is important! A U.S. Senate seat is at stake! We need a decision. Act now.

Meanwhile, in Minnesota . . .

Have you lost track of the Minnesota Senate Race? It occurred to me that I haven't thought about it in a while. The reason is that we're all waiting for the Minnesota Supreme Court to act.

Last month, Coleman's request for judicial review of the actions of the state elections apparatus actually led to an increased lead for Franken -- at the close of play he was up by 312 votes. But Coleman kept appealing; now the case is in the Minnesota Supreme Court.

That court has put the case on a leisurely schedule whereby Coleman's brief was due April 30; Franken's will be due May 11; and Coleman's reply will be due May 15. Then we'll all take a couple of weeks to fish and barbecue before oral argument on June 1. Of course there's no date set for the decision.

This is what the court calls an "expedited" schedule. Well, I suppose it is expedited compared to the normal case briefing schedule, under which briefing takes about two and a half months and the parties can wait another six months or so for argument after that. But heavens, this is an important case and the court could have gotten its judicial rear in gear a little faster.

As in most situations in which matters sit in a queue for a long time before action, it's usually possible to process any one matter very quickly if you allow it to jump the queue. The U.S. Supreme Court granted certiorari in Bush v. Gore on December 9, 2000, ordered briefs filed the next day, heard argument on December 11, and decided the case on December 12.

Bush v. Gore was not the Supreme Court's finest hour, to put it mildly. So I commend the Minnesota Supreme Court for not dashing through the Franken/Coleman case in three days. But that doesn't mean it requires more than 30. A week for each side's brief and then oral argument a week later would have been plenty.

Every day of delay in this case is another day that the people of Minnesota are deprived of half their representation in the Senate. The Minnesota Supreme Court should move more swiftly.

. . . 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.

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.

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.

Minnesota Brainstorming

As the Minnesota Senate recount grinds agonizingly on, one thing seems clear: there is no way to decide who truly won a race that's this close. I've been trying to think up ideas, but I'm afraid my best brainstorming hasn't solved the problem.

Running all the ballots through the machines and accepting the count is not the solution. Machines make mistakes. When you see a ballot that's marked with only a two-stroke "x" in the oval for the Senate choice, you know that's something the machine might not pick up. But when you see that the voter put only "x"s in the ovals for every election on the ballot, you know that the voter intended to vote for the candidates marked with the "x"s. As you look at images of the disputed ballots, you see many similar situations where the voter's intent is clear, but where it's understandable that the machine might not have counted it. Human judgment is necessary.

But humans make mistakes too. Judgment calls can be clouded by partisanship, intentional or unconscious. Even if everyone involved is counting with perfect honesty, there are still screw-ups. Humans can put ballots in the wrong pile. Counting a pile of 1000 ballots, humans might come up with 997 or 1004. Some ballots disappear.

And by the way, while it might seem that the solution to human partisanship is to trust the machines and say that it's just too bad if voters are too dumb to fill out their ballots correctly, remember that the apparently impartial solution of trusting the machines is actually partisan; the partisanship is just implicit rather than explicit. Democrats (at least according to conventional wisdom) have a higher error rate in filling out their ballots than Republicans, so putting the whole thing in the hands of the machines has the effect of giving a small edge to Republican candidates.

If the vote totals were separated by 1%, none of this would matter. 1% seems like a whole lot in the context of this recount. Even half a percent -- the statutory limit for automatic recount -- would be a luxurious margin. In this case, as in Florida's 2000 presidential race, the vote totals are separated by less than 1/100 of 1%. Even a margin of 0.02% would give me a lot more confidence that we would know the true winner at the end. The 0.01% difference seems impossible to resolve correctly.

Holding a runoff where no candidate reaches 50% (as Georgia did), would have solved the problem of this race, as would instant runoff voting, in which voters also vote for their second and third choices, and in which those votes immediately count if no one breaks 50%. Here, Dean Barkley's 400,000 votes would have been immediately distributed between Coleman and Franken and would, in all likelihood, have clearly broken the tie.

But neither of these methods really solves the problem. They would have worked this time, but might equally well have created trouble another time. For example, if Coleman had 44%, Franken had 42%, and Barkley had 14%, the election would have been clearly decided under the existing first-past-the-post rule, but distributing Barkley's votes under instant runoff might have created precisely the 0.01% difference that we see now. A candidate might have a clear plurality margin in an initial election but the runoff might result in a tie. So runoff and instant runoff (although perhaps desirable for other reasons) are just as likely to create an almost perfectly tied vote as it is to break one.

Similarly, one is tempted to say that the rule should be, "if the vote totals are separated by less than 0.01%, redo the election." But does that really help? Again, it just pushes the marginal cases out to a different line. There could be just as must trouble deciding whether the margin is above or below 0.01% as there is deciding which candidate is ahead under the current standard.

A better rule might be to vest someone (presumably the Secretary of State) with discretion to decide whether the election is so close that it should be redone, with the statutory guidance that redos should occur when the margin is about 0.01%. That would allow for a decision to be made without agonizing about determining the exact margin. But of course the fatal flaw with this method is that it would be impossible to find someone who could be trusted to exercise the discretion impartially.

Perhaps the best thing I can come up with is this: if the machine count on election day produces a margin of less than 0.5%, hold a recount, and if the margin is less than 0.01%, do the election over without a recount. That way the costs of a recount are avoided when it seems likely in advance that the election cannot be decided accurately. But again, even that method doesn't really solve the problem. It takes care of the present case, but still leaves trouble in the case where the initial machine count produces a margin of 0.02%, but the human recount is more closely tied.

Sorry, there's no solution. No matter what you do, there are going to be cases in which the count is too close to whatever line you've drawn.

I guess the ultimate solution is too increase the accuracy of voting on election day to the point where we can really trust the machine count and not have recounts even if it's really close. But that was the point of touch-screen voting, which has turned out to be a disaster.

The real solution is to win by a bigger margin.

MN Recount Drags On

They're still counting ballots in Minnesota. For an interesting peek into the process, you can take the Star Tribune's vote-counting challenge: the paper presents pictures of 599 challenged ballots. (A free but rather annoying registration is required.)

I say interesting, actually it gets dull rather quickly. Unlike the ballots presented by Minnesota Public Radio, most of these ballots seemed crystal-clear votes for either Coleman or Franken -- at least, that's what I thought. There were a few toughies, but most of the challenges strike me as frivolous. So not as interesting as the MPR display I linked to previously. (And another defect is that the Star-Tribune's display doesn't show you how other viewers voted on each ballot, the way the MPR one does.)

Apparently Franken's team is going to withdraw a bunch of challenges ("more than dozens," they say). Good. There's no point wasting time on ballots that are obvious Coleman votes. Coleman's side should do the same. Many of the challenged ballots are clear-cut Franken votes.

The ballots challenges have obscured the issue of who's actually ahead. If one side challenges a vote that was previously counted for the other, that vote is removed from the total until the State Canvassing Board's ruling. So although the vote count currently puts Coleman ahead by even more than on election day, the total misleadingly misses many clear-cut Franken votes that Coleman has challenged. And some of the same is going on in the other direction. So the current margin is somewhat meaningless. There's just no knowing the outcome until the State Canvassing Board rules on the challenges. Sorry, but we'll just have to wait.

How Neutral Are You?

The Minnesota Senate recount just keeps getting more interesting. After two days of hand counting, with 46% of the votes recounted, Coleman's lead is down to 136 votes.

Now, if one naively assumed that Franken would continue to pick up votes at the same rate for the remainder of the recount, he'll end up losing. Coleman started out ahead by 215, so recounting 46% netted Franken 215-136 = 79 votes. Therefore, one would naively expect the rest of the recount to net him 54/46*79 = about 93 votes, which would still leave him down by 43. (That's out of 2.8 million!)

Of course, the rate of change does not have to be constant, and a lot depends on which counties are left to go. So the above calculation could be misleading.

But what's really interesting are the questions that the recount raises. For a fascinating insight into what the counters have to decide, see here. Courtesy of Minnesota Public Radio, the linked page presents pictures of actual, challenged ballots, with the question that each ballot raises. Take a minute and see if you can decide whether each ballot should count for Coleman, Franken, someone else, or not at all.

Not so easy, is it? I thought most of the challenged ballots had pretty clear answers, but some definitely present close, judgment calls. The Minnesota law requires ballots to be judged by the "intent of the voter" standard. It's not so hard to judge the voter who started to fill in the oval for Coleman, then wrote "NO" next to it and filled in the oval for Franken. That's a Franken vote. The voter who filled in the oval for Franken but had a small dot in the Dean Barkley oval is an even clearer Franken vote. But what about the voter who filled in the oval for Coleman, but also put an "X" through the oval, and didn't fill in anything else? I'm giving that one to Coleman, but it's a closer call. And how about the voter who put an "X" in the Coleman oval and wrote "Bachman" in the write-in line? I would reject that ballot altogether. Perhaps the closest call is the voter who voted for Coleman but also put what appears to be a signature on the ballot. Minnesota law voids a ballot if it is "is marked by distinguishing characteristics in a manner making it evident that the voter intended to identify the ballot." The mark on this ballot is illegible, but it looks so much like a signature to me that I would disqualify it. Tough call, though.

It's got to be a tough job for the recounters. It happens that I've met Mark Ritchie, Minnesota's Secretary of State, and had some discussions with him about election law issues (about a year ago, not related to any of the current recount issues). My impression of him is that he's very committed to honesty and integrity in elections, and although he was elected to office in a partisan election (he's a Democrat), I would trust him to pursue the goal of a 100% honest, fair, neutral recount. But can the same be said of every single person who's actually involved in counting? I have no idea. And even more to the point, even assuming every counter is committed to a fair, honest, neutral recount, is it really humanly possible not to be swayed by some degree of (possibly unconscious) bias in making the close, judgment calls that the ballots actually present? That's a harder question still.

I am also put in mind of something Justice O'Connor said in the oral argument in the infamous case of Bush v. Gore. Discussing the standard for counting the votes, she asked, "Well, why isn't the standard the one that voters are instructed to follow, for goodness sakes?"

The pictured Minnesota ballots show how utterly naive and inappropriate that suggestion was. When you have millions of people, some careless, some in a hurry, some not well educated, some who don't speak English as a native language, some just not so bright, all doing something that they only do once every couple of years, they are going to make some mistakes. It's absurd to imagine otherwise. It's appropriate for the law to preserve the right to vote by taking these mistakes into account and permitting votes to count if the intent of the voter can be reasonably discerned.

And by the way, the other thing that's always struck me about that O'Connor quote is that she really meant to say "for goodness' sake," not "for goodness sakes." I guess she doesn't know how to follow instructions.

Incredible Shrinking Lead

OK, I can't resist: another blog entry about the election.

Norm Coleman's lead over Al Franken is down to 174 votes! That's out of about 2.8 million votes cast -- a difference of about 6/1000 of 1%. It doesn't come much closer than that.

Coleman previously urged Franken to waive the recount and concede, but that was ridiculous. Ted Stevens has graciously conceded in Alaska, but he's down by about 3,700 votes out of 300,000. There's a big difference between being down by 1.2% and being down by 0.006%. The common statutory standard is that a difference of less than half a percent justifies a recount at state expense. 0.006% is a whole lot less than half a percent.

Moreover, if one assumes that Democratic voters are more likely than Republicans to mismark their ballots, in a way that makes it difficult for machines to count, then a recount could make a big difference to Franken. Even a slight edge could overcome a 0.006% difference.

So I think a recount is totally justified. The one thing that seems peculiar to me is one feature of the actual recount process. The part that makes sense is steps 6-10 in the process: each ballot is inspected by a team of humans to determine who the voter really intended to vote for. That's fine -- machines can make mistakes, and a human should look at each ballot and determine which pile it really belongs in.

But then step 11 says that humans will also count up the ballots in each pile. Now that seems like a bad idea. Humans make mistakes too. Humans are better at exercising judgment, but machines are better at doing routine, boring tasks that don't involve judgment, like counting how many ballots there are in a huge pile. Imagine counting a pile of about 1000 ballots. Would you come up with exactly the right number?

I would have the humans sort the ballots into piles by deciding which candidate each ballot votes for, but then I would have machines count up the ballots in each pile. Mistakes are possible either way, but I would trust the humans to make fewer mistakes sorting the ballots into piles and the machines to make fewer mistakes in counting the ballots in each pile.

Of course best of all would be to do an empirical study of which method involves fewer mistakes, rather than consulting one's intuition. But there's no time for that now. People are counting big piles of ballots. Let's hope they come up with the right answer.