The Minnesota Recount Was Unconstitutional

The Minnesota Recount Was Unconstitutional
There's still plenty of time for the state to get it right.

By MICHAEL STOKES PAULSEN
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.
AP
A disputed ballot in Minnesota.
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, since the state court decision in effect kicked the can down the road. The candidates can revisit these issues by contesting the legal validity of the election under state law -- which Mr. Coleman's team did last week.
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.
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 the Minnesota Supreme Court fails to assure these things, the matter could go right up to the U.S. Supreme Court.
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.
Mr. 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.