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What About Minnesota?

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Wednesday, January 7, 2009

The Post asked election law experts and political scientists for lessons from the Senate contest between Norm Coleman and Al Franken. Below are thoughts from Jan Witold Baran, Robert Lenhard, Edward B. Foley, Richard L. Hasen, Eric Black, Steve Schier, Norman J. Ornstein.

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JAN WITOLD BARAN

Partner at Wiley Rein; special counsel to the attorney general's office in Virginia's 2005 statewide election recount; general counsel to the Republican National Committee from 1989 to 1992.

The position of candidates in disputed elections depends on whether one is perceived as ahead or behind in the vote count. The tactic of someone who is ahead is to declare victory and create an air of inevitability. The tactic of someone behind is to cast doubt on the legitimacy of the opponent's claim.

Al Franken is apparently ahead. He may even receive a certificate of election from the secretary of state. While such a certificate normally conveys an aura of finality, it can be assailed. In the 1984 election for a House seat in Indiana, the Republican presented a certificate of election but was not seated in the House because the Democratically controlled House wanted to conduct its own recount. The House later declared the Democratic candidate the winner. Without a certificate of election, a seating is even more difficult, if not impossible.

In any event, Norm Coleman must cast doubt on the outcome and the process to prevent the seating of Franken. For example, the state Supreme Court decided not to count 600 absentee ballots. Why? Coleman must demonstrate that the 600 uncounted absentee ballots are comparable to the more than 1,000 absentee ballots from pro-Franken jurisdictions that were counted. In this race, decisions have consistently added votes on Franken's behalf. If the recount was incomplete or an inside job by state and national partisans, Coleman needs to prove that quickly and convincingly. He must articulate any unfairness with specifics and in terms that Minnesotans can understand and support. By casting doubt on the legitimacy of the recount process and Franken's claims, he will arm his Republican Senate colleagues who will oppose seating Franken with or without a certificate of election. The world's greatest deliberative body would then need to deliberate who actually won the Minnesota election. That would take additional time. In 1974, the Senate was unable to come to an agreement over who won a New Hampshire election. After several months, it declared the New Hampshire seat vacant, and a new election was held. The Democrat won.

ROBERT LENHARD

Of counsel at Covington & Burling LLP; chairman of the Federal Election Commission in 2007

"Ladies and gentlemen, at some point -- at some point -- there must be closure. At some point, the law must prevail and the lawyers must go home. We have reached that point." -- former secretary of state Jim Baker, Nov. 26, 2000

The Minnesota Canvassing Board recounted nearly 3 million ballots by hand and has certified that Al Franken beat Norm Coleman, 1,212,431 votes to 1,212,206. That scant 225 votes is less than half the margin that divided George Bush and Al Gore in 2000. Baker's pleas notwithstanding, the lawyers remained hard at work then. Bush, who was ahead on Nov. 26, prevailed two weeks later.

Minnesota law allows Coleman to contest the result. He can instruct lawyers to work until all appeals are exhausted. Yet it is far from clear that litigating the 2000 election to the bitter end produced a better result for democracy. Today, our electoral process is widely seen as more prone to error and less legitimate than it was before 2000; there's some risk that litigation will do more systemic harm than good.

Political power is hard to accumulate, hard to hold and harder still to give up. One of the most remarkable features of our democracy is that men and women with enormous power relinquish it voluntarily upon a vote of the people. It's not like this everywhere.

The voluntary surrender of power is difficult, especially if there's a slim chance of a different outcome, but sometimes it's the better path.

EDWARD B. FOLEY

Director of the election law program at Ohio State University's Moritz College of Law

Process is paramount in an election this close. Minnesota figured out how to handle disputed elections fairly in 1962, when it had a gubernatorial election as close as its current U.S. Senate contest. The state's chief justice, who appoints the three-judge court that hears these cases, got the two candidates for governor to select three mutually acceptable judges. They picked one Democrat, one Republican and one neutral -- making it inherently impartial. Consequently, when the court concluded that the initially declared winner had, in fact, lost, that candidate (who already had been inaugurated) exited gracefully, accepting the outcome as disappointing but valid.

Will Minnesota be as successful this time? Can Coleman and Franken agree on three judges if they, too, are given the opportunity? It would serve the nation, not just their state, well if they could -- as it would heed Barack Obama's call for finding common ground in the midst of political competition. But even if these candidates can't jointly pick the judges, the court could still be inherently neutral as long as it has one Democrat and one Republican, and these two get to pick the third. Impartiality in the tribunal that eventually identifies the winner is what matters most. As in 1962, whatever a structurally fair court decides should be accepted as legitimate by all -- including both sides in the Senate.

RICHARD L. HASEN

Professor at Loyola Law School in Los Angeles who blogs at electionlawblog.org

The Minnesota Senate recount reveals that, even eight years after the Florida fiasco, there's no perfect way to decide the winner of an election when the margin of error inherent in the counting of votes greatly exceeds the margin of victory.

To be sure, Minnesota looks much better than Florida did. The ballot machinery was better, the recount was conducted more fairly, and election officials appeared to work in a more bipartisan manner. But no electoral system looks good under a microscope in resolving a razor-thin, highly partisan contest. With reports of 133 missing ballots in Minneapolis, and disputes over whether certain absentee ballots were properly excluded, some are going to suspect close questions of law or fact have been resolved in a partisan way to help one candidate or the other. There's no avoiding it in our partisan era.

Franken should count himself lucky he's come out on top (a decision that conceivably could be reversed in court), but his victory should be thought of less as the discovery of the "true winner" of the election than as the election administration equivalent of a fair coin toss.

ERIC BLACK

Former reporter for the Minneapolis Star-Tribune; blogs at www.minnpost.com/ericblack

Because of a quirk in Minnesota law, the final state election certificate cannot be signed until the court cases (we call them "election contests") have been resolved on final appeal. This could take weeks or months. If they choose, Senate Republicans can leave the seat vacant until then. Sen. John Cornyn, who has been speaking for the party on this matter, says that is their inclination. Senate Democrats don't have the votes to break a filibuster on the question.

But if the Republicans want to make a gesture of rising above the hyperpartisanship of recent years, this is a great opportunity. The Republicans should agree to seat Franken "without prejudice," pending the outcome of the legal contests. The Democrats should respond with an ironclad guarantee that if the Minnesota courts conclude that Coleman actually won the election, they will remove Franken and seat Coleman.

STEVE SCHIER

Political science professor at Carleton College in Northfield, Minn.

There are procedural solutions to avoid recount nightmares.

One, instant runoff voting, is on track to be employed in Minneapolis city elections this year. Under this system, voters rank their preferences among several candidates, and if their first choice falls below a threshold of votes, their second choice would be counted. This allows all voters to express a preference that counts in the final vote; no votes are wasted. Imagine if the more than 437,000 votes garnered by Independence party candidate Dean Barkley had their second choices allocated between Coleman and Franken. Those votes would count, and the outcome would probably be clearer, whereas in recounts under the traditional system, they are ignored.

Another option is to have a runoff election if the margin between the top two candidates is small -- say, under 5,000 votes -- or if either candidate fails to get 50 percent of the vote. Georgia, with its 50 percent threshold law, held a runoff election in early December, producing a decisive winner from between the top two candidates.

Either of these systems is vastly preferable to the baroque and unreliable recount process under which Minnesota elections now operate.

NORMAN J. ORNSTEIN

Resident scholar at the American Enterprise Institute

The five-member Canvassing Board, which includes two Republican justices from the Minnesota Supreme Court, worked in remarkable harmony and in complete transparency, with nearly all of its decisions unanimous. The secretary of state was rightly praised by his colleagues and nearly all observers in Minnesota.

The big issue was flubbed not by the board but by the state Supreme Court, when it refused to allow all wrongly rejected absentee ballots to be included in the recount.

This raises a larger problem: There were 12,000 rejected absentee ballots in Minnesota, a number dwarfed by the rejectees in California, Colorado and other states. Nearly all of these voters have no clue their ballots were not counted. Many ballots were rejected wrongly or arbitrarily, with standards completely different from those for ballots cast in polling places. Many races around the country were decided wrongly as a consequence. Absentee voting is skyrocketing and we need serious reform, nationwide, to provide protections against absentee fraud along with real protection and recourse for absentee voters whose votes are discarded for wrong reasons.


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