Posted on 02/22/2009 12:56:00 PM PST by rhema
You would think people would learn. The recount in the contest between Norm Coleman and Al Franken for a seat in the U.S. Senate isn't just embarrassing. It is unconstitutional.
This is Florida 2000 all over again, but with colder weather. Like that fiasco, Minnesota's muck of a process violates the Equal Protection Clause of the U.S. Constitution. Indeed, the controlling Supreme Court decision is none other than Bush v. Gore.
Remember Florida? Local officials conducting recounts could not decide what counted as a legal vote. Hanging chads? Dimpled chads? Should "undervotes" count (where a machine failed to read an incompletely-punched card)? What about "overvotes" (where voters punched more than one hole)? Different counties used different standards; different precincts within counties were inconsistent.
The Florida Supreme Court intervened and made things worse, ordering a statewide recount of some types of rejected ballots but not others. It specified no standards for what should count as a valid vote, leaving the judgment to each county. And it ordered partial recounts already conducted in some counties (but not others) included in the final tabulation. The result was chaos.
By a vote of 7-2, Bush v. Gore (2000) ruled that Florida's recount violated the principle that all votes must be treated uniformly. Applying precedents dating to the 1960s, the Court found that the Equal Protection Clause meant that ballots must be treated so as to give every vote equal weight. A state may not, by "arbitrary and disparate treatment, value one person's vote over that of another." Florida's lack of standards produced "unequal evaluation of ballots in several respects." The state's supreme court "ratified this uneven treatment" and created more of its own, and was unconstitutional. Bush v. Gore is rightly regarded as controversial — but not because of its holding regarding the Equal Protection Clause, which commanded broad agreement among the justices. The controversy arose because of the remedy the Court chose for Florida's violation, which was to end the recount entirely. The majority thought that time was up under Florida law requiring that its results be submitted in time to be included in the Electoral College count. That aspect of Bush v. Gore commanded only five votes. Two justices thought Florida should get more time and another chance.
The problem with the remedy was that it arguably violated the same principle that led the Court to invalidate the recount: the need to treat all votes equally. It had the practical effect of awarding the election to Bush (though subsequent media counts confirmed that Bush won anyway, under any uniform standard). This has led to enduring partisan criticism of the case, some fair and some unfair.
But no matter: Bush v. Gore is the law of the land. On the question of how the Equal Protection Clause applies to state recounts, the ruling, which reflected a 7-2 majority, controls.
Minnesota is Bush v. Gore reloaded. The details differ, but not in terms of arbitrariness, lack of uniform standards, inconsistency in how local recounts were conducted and counted and strange state court decisions.
Consider the inconsistencies: One county "found" 100 new votes for Mr. Franken due to an asserted clerical error. Decision? Add them. Ramsey County (St. Paul) ended up with 177 more votes than were recorded Election Day. Decision? Count them. Hennepin County (Minneapolis, where I voted — once, to my knowledge) came up with 133 fewer votes than were recorded by the machines. Decision? Go with the machines' tally. All told, the recount in 25 precincts ended up producing more votes than voters who signed in that day.
Then there's Minnesota's (first, so far) state Supreme Court decision, Coleman v. Ritchie, decided by a vote of 3-2 on Dec. 18. (Two justices recused themselves because they were members of the state canvassing board.) While not as bad as Florida's interventions, the Minnesota Supreme Court ordered local boards to count some previously excluded absentee ballots but not others. Astonishingly, the court left the decision as to which votes to count to the two competing campaigns and forbade local election officials to correct errors on their own.
If Messrs. Franken and Coleman agreed, an absentee ballot could be counted. Either campaign could veto a vote. Dean Barkley of the Independence Party, who ran third, was not included in this process.
Thus, citizens' right to vote — the right to vote! — was made subject to political parties' gaming strategies. Insiders agree that Mr. Franken's team played a far more savvy game than Mr. Coleman's. The margin of Mr. Franken's current lead is partly the product of a successful what's-mine-is-mine-what's-yours-is-vetoed strategy, and of the Coleman team's failure to counter it.
The process is not over yet. The original Minnesota Supreme Court decision in effect kicked the can down the road, leaving these (and other) issues to the seemingly interminable "contest" proceeding now dragging on before three different state judges. Unfortunately, it is beginning to appear that the contest proceeding is both continuing and compounding the constitutional problem of treating ballots differently. Not only have the errors of the Minnesota Supreme Court decision gone unremedied, but some absentee ballots are being treated differently from the way other absentee ballots have been treated.
As matters stand, the Minnesota recount is a legal train wreck. The "certified" result, a narrow Franken lead, is plainly invalid. Just as in Bush v. Gore, the recount has involved "unequal evaluation of ballots in several respects" and failed to provide "minimal procedural safeguards" of equal treatment of all ballots. Legally, it does not matter which candidate benefited from all these differences in treatment. (Mr. Franken did.) The different treatment makes the results not only unreliable (and suspicious), but unconstitutional.
What is the remedy? Unlike Bush v. Gore, there is no looming national deadline. Minnesota can take its time and do things right.
This means two things: First, the process must conform to Minnesota election law. Second, it must conform to Bush v. Gore. Whatever standards Minnesota uses must be applied uniformly, consistently, and under clear standards not admitting of local variation. Discrepancies between machine counts and hand recounts, and between numbers of recorded votes and signed-in voters, however resolved, must be resolved the same way throughout the state.
The standards for evaluating rejected absentee ballots likewise must be uniform, with decisions made according to legal standards, not by partisan campaigns. If, as appears increasingly likely, neither the contest proceeding nor the Minnesota Supreme Court brings Minnesota' s recount into compliance with federal constitutional law, the federal courts may need to step in. The matter could go straight up to the U.S. Supreme Court. Just as likely, a local federal district court may be called upon to issue an injunction against an unlawful state recount process, just as the U.S. Supreme Court needed to pull the plug on Florida's unconstitutional process in Bush v. Gore.
And what if there is no reliable way to determine in a recount who won, consistent with Bush v. Gore's requirements?
The Constitution's answer is a do-over. The 17th Amendment provides: "When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."
In a sense, a vacancy has already "happened." The U.S. Senate convened on Jan. 6 with only one senator from Minnesota. Still, the seat is perhaps not "vacant," just unfilled. But if the contest proceeding does not produce a clear winner that passes constitutional muster, a special election — and a temporary appointment by Gov. Tim Pawlenty — may be the only answer.
For now, the only thing certain is that the present "certified" result — which is that Mr. Franken won by 225 votes out of more than 2.9 million cast — is an obvious, embarrassing violation of the Constitution. What remains uncertain is whether the Minnesota courts can find a constitutional way out of the mess that they have helped to create.
Michael Stokes Paulsen is professor of law at the University of St. Thomas in Minneapolis, Minn. He is formerly associate dean of the University of Minnesota Law School. A version of this column originally appeared in the Wall Street Journal in January.
They should have a re-vote. Coleman would probably win by 10 points at this point in time.
Coleman attorney Ben Ginsberg: "I was able to go out that day and say today's the day the Democrats proved they can spend trillions without Al Franken."
Agree. However, a re-vote is logical and therefore will not happen under the current mess we call our laws.
Under which Minnesota Law could their be a re-vote?
Sorry, but a corrupted election isn't just "a vacancy that happened." I'm sure at this point the 'rats would like to see it all swept under the rug this way. But a "do-over" would be a mockery.
The good people of Minnesota have irretrievably tossed away their squeaky clean reputation...and for what?
I’d rather see a stalemate that lasts for years. Coleman’s vote is meaningless right now
I’m not sure. I don’t even know if it could be done. It just seems like the logical thing to do considering the mess they created. The State has no representation.
In the time elapsed since the “draw” in the election, they could have had a new election. IAC. the Constitution provided a remedy for the mess in Florida, which was to have the Legislature choose the electors. After all,
It’s a sad commentary on elections, if we can’t even decide on how to conduct a vote count.
How about a stricter standard? If a person didn’t fill out their ballot properly, then their vote is thrown out.
How can they justify using recount totals in some precincts, and the original election night totals in other precincts? That is adding apples and oranges.
And how can anyone, Republican or Democrat, justify a precinct with more total votes recorded than registered voters in that precinct????????
And I wonder how many ACORN votes were planted there????
Now with the billions they have ACORN will see to it there are NO votes for Coleman whatsoever in any rematch.
It’s time for another election. This “recount” crap is out of control.
AFAIK, there is no law in the State of Minnesota that states “If a U.S. Senate Election is really close, within a couple hundred votes or so, there will be a Do Over Election.”
Unless, there is such a law, a Do-Over Election would not be legal.
I don’t care if Franken wins, if he has more votes that’s how it works. But I care like hell that these politicians are treating the RIGHT TO VOTE like just another game to play.
THIS is what we send troops in harms way for. THIS is the foundation of democracy.
It just makes my blood boil to see this sacred right treated like dirt. Win or lose, at least give the process the respect it deserves!
The recount was so bad about 25 counties ended up with more votes than registered voters, either they call the original vote final or re-vote. AN aside, Coleman voted for the $700+ billion Bail-Out, he deserves Franken, America don’t.
I say put Franken in. Show Coleman for being a Rhino and show Minnesotan’s how stupid they are and put no doubt in the electorate as to who screwed things up for the next election.
“I say put Franken in. Show Coleman for being a Rhino and show Minnesotan’s how stupid they are and put no doubt in the electorate as to who screwed things up for the next election.”
We did that with 0bama.
Look what is happening.
Yes. Look at what is happening. People are waking up and realizing the world is a dangerous place and life here isn’t so bad. Obama has been a complete disaster and the left is exposing itself for what it is. Talk to your fellow democrats, the ones I know aren’t too pleased with how its gone. Looking forward to 2010
Seems to me after all the money that’s been spent on the re-re-re-counts, a runoff election would’ve been far more feasible. Not that the voters of MN would understand it, though.
Paging SCOTUS. Cleanup on aisle MN.
Yep, It is dumb to let someone win with a plurality.
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Of course, the way it is it’s two shams of a mockery of a sham.
If there is a re-vote there needs to be assurances that ACORN isn’t counting the ballots.
trumandogz wrote:If there is a "do over," it will be ordered by the federal courts.
AFAIK, there is no law in the State of Minnesota that states “If a U.S. Senate Election is really close, within a couple hundred votes or so, there will be a Do Over Election.”Unless, there is such a law, a Do-Over Election would not be legal.
This article makes valid constitutional points. By Bush v. Gore, the "recount" that has happened so far is invalid and does not meet constitutional muster. It fails under the "equal protection" clause of the 14th amendment.
If a federal court rules this way, they could also find that with everything that has happened so far, there is no way to salvage the November 4, 2008 election. There are ballots that were "found" without a proper chain of custody. There are ballots that are "lost" that were counted on election night, but can't be located today.
From that, it could be ruled that what happened on November 4th, 2008, was not a valid election. Since no election occured on November 4th, 2008, the seat could be declared "vacant," and the remedy would be that the vacancy would be filled according to the 17th Amendment to the United States Constitution, and by state laws that comply with the 17th amendment.
The question is, has the "recount" and now the "contest" process damaged the election to the point where no valid result can be determined. I think the combination of "found" ballots in some precincts and "lost" ballots in other precincts could be bad enough that the actual result (consistent with the equal protection clause) can no longer be determined.
I thought elections were run by the states .. governed by the states .. and counted by the states ..??
If so .. then the federal Constitution is not yet in play here .. because the federal govt delegates the elections to the states.
So .. I believe this article is just in another of a long line of liberal garbage pages just to sow the seeds of “unconstitutional” .. as always. The only time the dems even pay attention to the constitution is when they’re in a pinch and the other side is calling their bluff.
My bad...I meant my previous post for bluedressman.
Sorry, I almost forgot this cute litle sentence:
“And what if there is no reliable way to determine in a recount who won, consistent with Bush v. Gore’s requirements?”
THIS IS A LOAD OF CRAP!! These idiots know there is a “reliable way to determine in a recount who won”, they just want the public to continue to believe that Bush didn’t win .. so of course Colburn shouldn’t win either.
Well .. for all those in MN .. please pay attention: According to federal elections laws, exactly one year after the 2000 election, several very left-leaning or liberal newspapers pooled their money (because it costs hundreds of thousands of dollars), and they petitioned for the priviledge of RECOUNTING THE VOTES.
Sooooooo .. guess what all those liberals found out after the recount .. BUSH WON!! BUSH REALLY DID WIN .. AND EVEN AFTER 8 YEARS - WE STILL HAVE A NATIONAL DEMOCRAT TALKING HEAD SAYING, “BUSH STOLE THE ELECTION”.
This is the kind of stuff that drives me crazy. The left still refuses to tell the rest of the world about their recount results .. and instead fans the flames of “stealing elections” when it’s common knowledge that with ACORN .. the democrats actually do try to STEAL ELECTIONS.
coleman would loose....the third party candidate drew about 400,000 votes which I think would go to Coleman.....
I’ve been out of the loop, somewhat, since the November Elections. What is the present status of the MN Senate Seat? Is Coleman still serving? Was Franken sworn in? Is the seat empty?
Forgive my ignorance but I sincerely want to know. After the Nov.4th fiasco, I quit listening to talk radio, cable news and have even been AWOL from Free Republic.
Can someone please fill me in?
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