Saturday, January 10, 2009

The court erred

Minneapolis, Minnesota

Don't group me with the chatterers who think the recount in Minnesota's election of a U.S. senator was all fouled up. For sure, some problems have surfaced that need to be fixed, and they will be. Overall, the process was as fair and transparent as anyone, anywhere, could have made it. In this, Minnesota's election milieu remains a model for others.

On the issue of "wrongly rejected absentee ballots," however, things went haywire. Minnesota election law has four criteria/reasons by which absentee ballots can be "rejected and not counted." Election officials in the state's 87 counties identified a small universe of 1,300+ that did not fit one of the four reasons for exclusion. These ballots were not counted on election day. They need to be counted.

Unfortunately, Minnesota's Supreme Court, in a 3-2 decision, directed that representatives of both the Coleman and Franken campaigns must agree with the local officials about the merits of a ballot's wrongful rejection before it could be counted. As a result, three-way agreement was reached only for 900+ ballots. Some 400-500 ballots were not counted and their voters were disenfranchised.

This decision to inject partisan veto power – which was exercised by both sides – into the recount process was wrong. The court should have directed that the 1,300+ ballots be counted. Then, if either campaign had a problem with a particular ballot, they could take the matter to court after the State Canvassing Board certified the election results.

Many members of the state legislature seem to agree and are moving to clarify this aspect of our recount procedures in the statute books. Good for them!

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