Memo: A modest, unsolicited suggestion

From: Eric Black, citizen

To: Minnesota State Canvassing Board

Re: Mask the ballots

Summary: Do what is reasonably possible to ensure that you won't allow your partisan loyalties to influence the rulings you are about to make. For example, have the staff mask the ballots so you don't know which candidate will gain or lose from a particular ruling.

I am absolutely not pointing any fingers. Until we see evidence to the contrary, I'm happy to assume all Canvassing Boardsters are trying to be as fair and conscientious as possible. But let's be candid, partisan bias and perceptions of bias are part of the recount process. Many Republicans have had fun noting that Secretary of State Mark Ritchie is a DFLer, and questioning whether he can possibly administer the recount in a non-partisan manner.

Ritchie has received mostly good reviews for avoiding partisanship in his decisions so far, not least of which was that in appointing the four members of the Canvassing Board that includes no known Democrats other than himself, and two known Republicans, Chief Justice Eric Magnuson and Justice G. Barry Anderson.

A small tempest occurs, at least from the Coleman campaign, Republican Party officials and sympathetic bloggers, every time Ritchie makes a ruling or expresses an opinion that can be interpreted as helpful to Franken. The same will occur in the opposite direction as the two Pawlenty-appointed justices make rulings that help Coleman.

You will be facing at least two potential powder kegs very soon. You will be deciding whether to include in your final count the 133 missing Minneapolis ballots, as counted recorded by the voting machines on Election Day, even though it has not been possible to recount those ballots. Ritchie has already opined that they should be counted, which is worth a net 46 votes to Franken. If the two Republican justices vote not to include those ballots in the count, all partisan hell will break loose.

Similarly, the board's decision on the now famous "Pile Five" absentee ballots will be made soon (they were disqualified on Election Day, but not for problems identified by the laws on absentee ballots, and many of them were probably disqualified in error). The stakes here are possibly bigger than the missing votes. Team Franken is working to get as many disqualified absentee ballots reconsidered as possible. Team Coleman takes the opposite position. If Ritchie sides with the Franken arguments while Magnuson and Anderson side with the Coleman argument, Katie bar the door.

I think it's very hard for people to set their partisan loyalties aside and even harder to be perceived as setting them aside. And it is in the best interests of the entire system of law and politics combined that the ultimate rulings of the canvassers have as much credibility and respect as possible.

So, with apologies in advance for any presumption, my suggestion is that the board take steps to enhance the credibility of the process by putting themselves in a position to make the rulings they need to make without knowing which side/candidate/party will benefit.

Ask the staff to identify small portion of challenged ballots on which it is truly difficult to tell by the voters' markings whom they intended to vote for. (Thousands of ballots have been challenged, but the number of tough calls will be much, much smaller, maybe a couple of hundred.)

Instruct the staff to then prepare photocopies of the relevant markings on those ballots, and show the markings, basically the portion of the ballot that has the ovals on it, to the board, without showing them the names next to the ovals. The canvassers can decide which marks in which ovals best reflect the voters' intentions without knowing whom it helps. Once the board votes and awards the outcome of a particular ballot to a particular oval on the masked copy, the staff will reconnect the oval to the actual ballot and the vote will be recorded.

Over the last couple of days, as I've tried my idea on a few friends, several have raised the objection that, since the order of the names on the ballots is known, an observer can fairly easily figure out whose oval is whose. My suggestion: instruct the staff, as they prepare the masked ballots, to take this into account. They should be authorized to remove ovals from the top or the bottom so that the canvassers can see all relevant markings, but don't know whether the top oval they see is the top oval on the ballot.

Objection Two:  There may be some ballots on which the markings extend to the area of the ballot where the names are present. A voter may have circled a name or written something by the name to clarify their intent. As I look at the challenged ballots that have been published, I see this as a negligible few. The board may have to see the names in those cases but that is no reason not to mask ballots that can be masked.

Objection Three: It may be necessary for the board to see the entire ballot to judge intent. For example, a voter marked an X through the oval next to one of the Senate candidates and left the rest blank. Was he trying to express a preference or disdain or maybe X out a mark that he started to make? The board would reasonably want to look at how the same voter marked the other races on the ballot. If one candidate in each reach got an X through their oval, that should tell you what you need to know. In cases like these (not as rare as Objection Two but still a minority of the tough calls, as best I can judge), it should be possible for the staff to provide the comparisons to the ovals in the other races without showing names.

Finally, Objection Four: Some of my friends thought this would be a lot of trouble for a small gain in non-partisanship and perception of fairness. That's a cost/benefit judgment the board can make, but I don't see the masking as that monumental a task, and I believe increasing public confidence in the board's work to be a significant gain.

By the way, there is a precedent for this idea. When I was researching a November piece on the most messed up Senate election ever, the 1974 New Hampshire election that ended up being recounted in the Senate itself for several months  (aaaarrrggghhh!), the Senate Historical Office referred me to an oral history interview (PDF) with the Senate parliamentarian from that era, including a chapter on the New Hampshire Senate recount and the Senate did, in that case, ask for a masking of ballots where possible.