I need to dial back on one point I made in my Monday morning piece on the applicability of Bush v. Gore to Coleman v. Franken. Specifically, it may be that at least one key portion of the Coleman-Franken recount was ordered by a court, and I said it wasn't.

Why does that matter?

The U.S. Supremes in Bush v. Gore (BvG) included some strange language implying that it wasn't setting a broad precedent on when issues of uniformity in the counting of ballots violate the Equal Protection Clause. Specifically, the five-member BvG majority warned that the issue was complex and that its ruling applied only to the present circumstances of the presidential election in Florida in 2000. That leaves future courts and litigants wondering exactly what similarities of circumstance might create another case to which the logic of BvG should apply. Team Coleman would like to apply it. Team Franken argues that deep differences of circumstance between the two cases makes the BvG case "inapposite," as the lawyers call it.

In my piece, I suggested some of the differences. For one, the BvG majority seemed particularly hung up on the fact that the Florida recount had been ordered by a state court with the power to assure uniformity," (but that the Florida Supreme Court, which ordered the Florida recount, had not provided even "minimal procedural safeguards.")

One difference between the cases, I wrote, was that:

In Minnesota 2008-09, the hand recount was triggered automatically by a state law (because the margin was small). It was not ordered by a state court with the power to assure uniformity.

That is true of Minnesota's statewide hand recount. But, when I wrote it, I wasn't thinking about the fact that the Minnesota Supreme Court did, during the State Canvassing Board portion of the case, order all counties to take another look at the absentee ballots that had been rejected and consider whether any of them were rejected by mistake. In the most controversial aspect of the ruling and one of the few that has led to a non-unanimous ruling during the entire election/recount/contest/etc. process, the divided MN Supremes said that those ballots should be added to the final state Canvassing Board count unless either the Coleman or Franken campaigns vetoed them.

Anyway, it's not that veto issue that I overlooked. It's that the MN Supreme Court did order what could be called at least a partial recount (statewide, but involving only a small percentage of all ballots). And it did so without taking steps to ensure uniformity. Basically, they left it up to the county officials and the two campaigns to decide which of those ballots could be counted and did nothing much to cure inconsistencies between how various counties would make that decision.

If you view that as a statewide recount, ordered by a court, without ensuring uniformity of treatment of the ballots under review, it could be viewed as a similarity, rather than a difference, between the circumstances of BvG and Coleman/Franken. There are still plenty of issues of cirumstance to distinguish BvG from Coleman/Franken, and the courts will have to decide which are the key similarities and differences. I just wanted to improve the accuracy of what I published Monday.

We now return to regular programming.