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Minnesota's election system after two recounts

After Minnesota took eight excruciating months to decide that Al Franken had beaten Norm Coleman in the 2008 U.S. Senate race, followed by the close (but not nearly as close as Coleman-Franken) 2010 gubernatorial race which resulted in a recount and raised the possibility that no winner would be sworn in on inauguration day, Minnesotans may feel a little cursed, a little shell-shocked and occasionally wondering what the rest of the country thinks is wrong with us election-wise.

Those two experiences do suggest that – contrary to its national reputation as a solid blue state – Minnesota is very evenly divided politically in state races. But to those who understand the law and mechanics of elections, the two recounts also showed the Minnesota is a national model in the nuts and bolts of running elections and, when the elections are very close, running recounts that that inspire trust.

At least that was the overwhelming sense of a panel of election experts that met yesterday at the University of Minnesota’s Humphrey School.

Ned Foley, a law professor at Moritz College of Law (that’s at Ohio State University) is a top election law expert who is directing a national program for the American Law Institute to develop model laws and practices for states around the country.

At yesterday’s panel, Foley – who closely followed the recent Minnesota recounts – said that Minnesota did a great job on both recounts and at every level, from the work of the local election officials to the ability of the state court system to reach unanimous verdicts on the major questions that arose, despite the presence of judges with both DFL and Republican backgrounds.

Coming from Ohio – where Foley said each of the last four election cycles has produced litigation challenging the legitimacy of the outcomes and where public confidence in the fairness of the process is justifiably low – he was particularly impressed with Minnesota’s ability to produce results that “had legitimacy,” “deserved public respect and trust,” and demonstrated an overriding value on leaving the electorate with confidence that democracy had worked.

Slow is awkward

The length of the Senate recount was awkward. One of Minnesota’s U.S. Senate seats was vacant from January to June – and this occurred at a time in the first year of the Obama Administration when the Democrats were one vote short of a filibuster-proof majority.

And the idea of a comparable delay in a race for governor or even president raises even more frightening prospects, since those executive positions could not be allowed to remain vacant. So the panel discussed how to address that problem is is occurred in a race for governor or president.

Former U.S. Attorney David Lillehaug, who worked for the DFL side on both the recount cases, had a a few concrete suggestions:

  • Clarify and strengthen the power of the state Canvassing Board, which has the first crack at resolving some of the issues in a recount situation.
  • Authorize the Canvassing Board to issue a “provisional” certificate of election that would allow the seat, whether for senator or governor, to be filled by the apparent winner of the election, subject to the possibility that the subsequent appeals might change the outcome, in which case the provisional winner would have to yield the office.
  •  Change the law (although this would require a state constitutional amendment) that puts two members of the state Supreme Court on the Canvassing Board because, as happened in the Franken-Coleman case, those two justices must then disqualify themselves from hearing the final appeal in such a case.
  • Reduce the threshold for an automatic, publicly-financed recount from the current law (races that are decided by less than one-half of one percentage point of the vote) to one quarter of one percentage point. (At that level, the Franken-Coleman race would still have easily qualified for a full recount.)

Foley replied on one of those suggestions. The provisional certificate idea might work with a Senate or U.S. House race. But in the case of a governor or president, he questions whether such a plan would constitutional. In the case of a president (assuming one state had issued a provisional ruling on which candidate got its electoral votes) there is no constitutional language suggesting that a president could be sworn in provisionally awaiting a final ruling on the election outcome. One a president is sown in, he said, the only constitutional way to get him out would be impeachment.

How I got on that Canvassing Board

Former Chief Justice Eric Magnuson, who sat on the Canvassing Board in the Senate recount case (and therefore did recuse himself when the Supreme Court heard the final appeal) said that from the time he woke up on the morning after the election what he feared the most was that partisanship or the appearance of partisanship would taint the public’s confidence in the final outcome.

He recalled that when political observers saw that the two justices who would serve on the Canvassing Board (Magnuson and Justice G. Barry Anderson) were both appointees of Republican governors, they wondered how this apparent coup for the Republicans had occurred.

For humorous affect, he told the anecdote of how this had come about. He was notified by the Secretary of State’s Office that he needed to appoint two members to the Canvassing Board. Since he was new to the job, he asked his secretary how this was usually handled. She told him to send an email to all the justices asking for volunteers, and, if nobody volunteered, he should do it himself. She told him it was no big deal and usually involved attending one meeting that would take a half an hour to just look over the preliminary results and finalize them.

So he sent the email around and nobody volunteered. So he sent a second email in which he said he would take one spot, but somebody else had to take the second spot. So Anderson volunteered on the second round. Some partisan coup.

Of course the Canvassing Board gig ended up leading to days and days spent looking at challenged ballots and hearing discussions what standards were used to accept or reject absentee ballots etc. But, contrary to his original fears, none of the issues came down to close votes along partisan lines.

Voter Photo ID

Rachel Smith, who is chief Elections Manager for Hennepin County and held that job for Anoka County at the time of the Coleman Franken recount, was asked about the potential impact of the voter photo ID requirement that will be on the November ballot in Minnesota.

She raised a concern about how the requirement, if it is implemented, will interact with Minnesota’s law allowing Election Day registration. A person who registers on Election Day will presumably show a photo ID at the polling place. But the proposed constitutional amendment says that the person’s identity, and their qualification to vote, must be verified before the vote can be counted. But the workers at the polling place could not be expected to verify, for example, whether the person is a U.S. citizen or whether he might be a former felon who has not yet qualified to get his voting privilege back.

The Photo ID proposal does allow for Minnesota to create a new category of “provisional ballots” to cover situations in which the qualifications to vote are unclear. But if every ballot cast by an Election Day registrant has to be treated as provisional, the numbers could get huge. Smith expects about 100,000 Election Days registration just in Hennepin County, and perhaps three or four times that many statewide. To have that many ballots treated as provisional, which means they wouldn’t be counted until they were verified, would greatly complicate the task of reporting a final result on Election Day.

Lillehaug weighed in against the Voter ID proposal, citing not only the kind of logistical issues Smith had raised, but also objecting that any such proposal to change election laws that passes on a party line vote (as the law putting this proposal on the ballot did) threatens to undermine the public’s trust that the election is being run in a non-partisan manner.

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Comments (25)

And very little fraud

I would also point out that despite Republican claims of massive fraud, over-votes, etc, neither recount produced an evidence of a serious problem with fraudulent votes. We don't have a perfect system, but fraudulent votes are few and far between.

Hmmmm

I've heard this time and time again but I think there is something unacknowledged in the reasoning. We don't have systems in place to really catch voter fraud. Right now a voter, or group of voters, can be simply vouched for and have their votes counted without challenge. If we took away the radar guns from the police we'd see a huge drop in speeding tickets without any real drop in speeders.
And before anyone jumps on me, I can fully understand why we've biased the system to trust that votes cast are real. I don't want a system where it's hard for people to show that they can legally vote.
You remember during Iraq's first real vote they would mark someone with purple ink when they'd voted? Why don't we use a system like that? It would keep down the possibility of any serial voters and wouldn't reject any honest ones. Would there be a problem with this idea?

Yes we do have system for catching and prosecuting fraud

David,

I'm sorry but you simply mistaken. MN has a 12 step verification process for verifying all registrations, and that process catches the majority of fraudulent voters right now, that's how 144 people got caught voting illegally since 2009. You don't just vouch and walk away, that registration is subsequently verified, and if you have lied on that voucher you have committed a felony, and will be prosecuted.

You can worry about what 30 or 40 felons are doing on election day if you want, but when we eliminate when we replace same day registration and vouching with provisional ballots, we'll be setting aside tens of thousands or even hundreds of thousands perfectly legal votes on election day. It's like knocking out a hornets nest with a hand grenade, and it won't prevent fraud, it will just decrease the numbers of votes that are counted.

"Those two experiences do

"Those two experiences do suggest that ... Minnesota is very evenly divided politically in state races."

I disagree. Al Franken was a rather weak candidate. Coleman even said that a better candidate would have beaten Normie by a landslide. Obama won Minnesota 54-44; that does not suggest "evenly divided."

In the 2010 governor race, we had yet another very strong third-party vanity campaign, creating yet another very close outcome between the top two candidates.

....Former Chief Justice Eric

....Former Chief Justice Eric Magnuson, who sat on the Canvassing Board in the Senate recount case (and therefore did recuse himself when the Supreme Court heard the final appeal) said that from the time he woke up on the morning after the election what he feared the most was that partisanship or the appearance of partisanship would taint the public’s confidence in the final outcome.....

I don't think Magnuson being the Emmer recount leader helped in the case of "impartiality" on the part of the judiciary. Even though he was off the bench by then, was he hired for what he knew of who he knew? The flavor of his move was slightly rancid.

Process Question

A few months back, James O'Keefe set up a video in which he obtained absentee ballots in MN for people who aren't eligible to vote here. Here is the video: http://youtu.be/GqMVxeZhflI
The ballots were given to him without any request for ID. He was told that they could be mailed in without any kind of official verification. Presumably if he filled them out and mailed them in they would be counted as official votes, though he has said that he won't do any such thing.
So here's the question, is there some point in the process where such a thing would be caught? If someone quietly did this with a half dozen absentee ballots, would the state of MN ever know about it? I'm honestly ignorant of the nuts and bolts here so if there is someone out there who knows how it all works, I'd be very thankful for an answer.

Staged is the term here....

His Wikipedia entry begins:
"James E. O'Keefe III (born June 28, 1984) is a conservative American activist who has produced audio and video recordings of staged encounters with public ..."
There's some question as to whether the actions he taped would have occurred without his involvement.

Wikipedia

Oh, well if someone who has edited Wikipedia thinks they were staged . . . No, that really doesn't mean anything. Do you know this, or do you just not trust O'Keefe? Are you saying that if I went in without a camera and asked for some absentee ballot forms that I'd be asked for ID or some kind of proof that the voters actually exist?
Again, if anyone knows when such a fraud would be detected, I'd be very interested to know. Thanks!

O'Keefe's stunts have been reported in many places

The problem is proving a negative: absence of evidence is not evidence of absence.
Despite the lack of proof of fraud, there is no evidence that it has occurred on a significant scale (that is, greater that the margin of measurement error inherent in the balloting process).
So, O'Keefe demonstrated that it is possible to commit fraud ( do you know of any situation where this is NOT so?), but only proved that HE has actually done so.

Stop Circling Around The Question, Please

He proved that it is very easy to pick up absentee ballots without any kind of ID or verification. Would the system catch this somewhere or not?

He proved nothing!

James O'Keefe is known as a serial liar who puts out doctored videos. Using him as "proof" of anything beyond his own cupidity just isn't going to work.

Incidentally, getting an absentee ballot is not the same as using one to vote. As I recall from my days voting via absentee ballot, I had to swear under oath that I was entitled to vote, and the ballot envelope was notarized. If I recall correctly, it was then up the registrar to make sure my vote was legitimate.

The O'Keefe video

The O'Keefe video is a wast of time. Yes, you can pick up an absentee ballot, and no there isn't any "special" verification process. However anyone casting an absentee ballot has to go through the same registration and 12 step verification process that everyone else has to go through. You don't need a hidden camera to find that out. The ONE case of voter fraud that Minnesota Majority has managed to produce was a woman who cast a fraudulent absentee ballot, the reason she got caught is because absentee voters are subject to the standard 12 step verification process.

12 Step

Ok, thank you, for answering.

Cite Please?

Paul, I've been Googling around for more info on the 12 step verification process and I'm coming up empty. Can you point me in the right direction with a link please?

12 step verification process.

I'm actually working on getting that from the Secretary of State's office right now. I can give you some of the steps:

One is the registration card that is sent out to the address you register under. A non-forwardable card is mailed out to the address listed for registration. If that card cannot be delivered because it's a vacant lot or something, the card comes back to the secretary of states office and is flagged for further investigation. They cross reference social security numbers, death certificates, previous registrations, drivers licenses, etc. When I get more information I'll make it available.

Beware Minn Majority numbers, they have a voter ID video out there that claims something like 20,000 verification cards are returned every year, that number is a complete fabrication. The number in 2010 for instance was 399. Note, that doesn't mean there were 399 attempt to register fraudulently, there are number of reasons ranging from bad handwriting to faulty memories that can lead to an undeliverable card, that's why all the other steps are part of the process.

Deliberate

And note that this one case was not deliberate fraud, just a breakdown of communications between the voter and her mother.

@ Paul U

That just demonstrates how much fraud there is.
There must be a great deal of it to justify the intensive effort that must have occurred to hide it all.

@ Peder re Wiki's

Wikipedia is a collaborative effort; you too can become an editor if you want to help control what's published there.
I signed up as an editor to correct some inaccuracies related to my professional field (behavioral psychology). In fact, I believe that you can do some editing without even becoming an editor.
So, If you feel that their section on O'Keefe is inaccurate, you can correct it.

O'Keefe

Look, I don't want the focus to be on him. That's not at all why I asked my question. If you actually do need ID when you pick up an absentee voter registration, then his video was false. I hadn't seen anyone claim that he had falsified this particular video (and still haven't). Looking around online I haven't seen any place where it says that an ID must be used. The Minnesota Secretary of State website:
http://www.sos.state.mn.us/index.aspx?page=211
says nothing about needing an ID to pick up a ballot. It says nothing about having your ballot notarized. It says nothing about a 12 step verification process.
I'm very open to the idea that I'm missing something here but it would be nice if someone could provide a link to some proof. If we have a system where someone can go in and request blank forms and then simply mail them back and have them count as valid votes, then we have a system with a loophole that you can drive a truck through. I would be very happy to know that this isn't the case. Can anyone actually show me this?

Easy to find

A person who wants to vote by absentee ballot has to make a written request (Despite what he may want you to believe, I suspect that what Mr. O'Keefe received were the applciation forms, rather than actual ballots). The ballot itself is not notarized, but the envelope it is placed in is. The envelope is also marked with an identifying number.

The whole megillah is here: https://www.revisor.leg.state.mn.us/rules/?id=8210.

Thanks for the link

What I'm finding here:https://www.revisor.leg.state.mn.us/rules/?id=8210.0500
is that a voter can either provide ID or have a witness sign the ballot. That witness need not be a notary. So we still have a loophole, don't we? If some nefarious person wanted to submit fraudulent votes, they could simply write down the name and address of a neighbor as the 'witness' and then drop them in the mail. If someone is willing to commit the crime of voter fraud, it doesn't seem like we have made them work very hard.

Yes, but . . .

The name and address can be verified easily, since the witness must be a Minnesota registered voter. Also, the person who is being witnessed has already been required to provide identifying information (MN driver's license or state ID, for example).

If some nefarious person had a fiendish plan to submit fraudulent votes, I think detecting it would not be that difficult.

Even in Florida

When my 90 year old mother needed an absentee ballot, getting the application was trivial (I was able to order it online and it was sent to her by mail).
Filing the application, on the other hand, required swearing that one met the voting eligibility requirements, as did submitting the ballot.
The process had three stages:
1. Requesting an application.
2. Filing the application to request a ballot.
3. Receiving and submitting the actual ballot.

As RB says, I suspect that what O'Keefe did was the first stage.

Loophole?

Peder,

Again, anyone casting a vote in vote in MN whether by absentee ballot of otherwise is subject to the registration and verification process, that's why you have to fill out an "application" in order to get an actual absentee ballot. No, the state doesn't explain the verification process on it's website. You can visit any law enforcement website and you will not find a description of how they investigate crimes either, that doesn't mean they don't investigate crimes does it?

Here is a link to the Secretary of State's absentee ballot information page: http://www.sos.state.mn.us/index.aspx?page=211 Look it over, download the application PDF, and look it over. Pay special attention to item 8, where you sign the application, note the warning. No one can currently vouch for anyone on a absentee ballot application.

When you sign a voter registration application, or if you vouch for someone on a voter registration form of any kind, you are signing an affidavit, it is perjury to lie on an affidavit, and in MN perjury is a felony, and those felonies, as rare as they are, are prosecuted in MN.

Loopholes? No system is perfect. How do you expect military personnel deployed on the other side of the world to show up at an election office with an ID to obtain an absentee ballot application? This is why you can file an application online, or over the mail, and get a ballot without having to show up in person with an ID. Is that a loophole? Ultimately you will end up arguing that absentee ballots themselves ARE the loophole, and should be eliminated. This is why the ID or equivalent requirement threatens the existence of absentee ballots in MN.

This is NOT a theoretical problem, this is a real democracy, and we have to have a system that allows and even encourages voting. No system is ever going to be perfect so the problem isn't whether or not you can identify theoretical loopholes, the problem is identifying real instances of fraud, and dealing with it without disenfranchising legitimate voters.

Another problem is identifying reliable sources of information. Anyone who wonders into a state office with a hidden camera to find out how to get an absentee ballot instead of simply visiting the state's website is clearly not a reliable source of information since they clearly have no idea how to conduct reliable research. And by the way, if information is not available on the website, all the contact information you need to ask a question is there, you can write and ask. This is your government, you need a hidden a camera to get information from it.

"don't"

Hmmm, meant to say you "don't" need a hidden camera to get information from your government.