The Wall Street Journal gave one St. Thomas professor a pretty big chunk of space to tear apart the Minnesota Senate recount today. Michael Stokes Paulsen, formerly an associate dean of the University of Minnesota Law School, called the recount "unconstitutional," "a legal train wreck," and "Bush v. Gore reloaded". Those are some very loaded words, Paulsen.
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.
But as matters stand now, the Minnesota recount is a legal train wreck. The result, a narrow Franken lead, is plainly invalid. Just as in Bush v. Gore, the recount has involved "unequal evaluation of ballots in several respect" 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.As we have mentioned many times before (we feel like a broken record) many of those decisions to count ballots were decided by the state Canvassing Board, a bipartisan group.
Paulsen has chosen to use evidence for this piece, such as the 100 votes in one northern county, that have been proven to be fair. Besides, those "100 found" votes were part of the first unofficial total, so those votes were all hand counted anyway once the recount began. Adding 100 votes was simply an adjustment of totals before the recount.
On the other issue of campaigns picking which absentee ballots to count, we do see a problem with that. We're still not sure why political campaigns with an interest in winning the race get to choose which votes to count. And according to analysis of the absentee ballot rejections, Coleman, not Franken, was the one cherry picking votes, particularly at the beginning.
As if this recount needed more drama right now.