Thinking a bit down the road here …
It seems likely that the U.S. Senate recount will come down to challenged ballots. The state Canvass Board makes the final determination on which ballots count, and for whom. Next week, for example, the five-member body will decide whether improperly rejected but uncounted absentee ballots are added to the pile. Canvass Board decisions can’t be appealed; the loser’s only recourse is to seek a so-called “judicial recount” of ballots under court supervision.
Here’s the thing: By law, two Minnesota Supreme Court justices are on the Canvassing Board; this time it’s Chief Justice Eric Magnuson and G. Barry Anderson. Their Canvass Board judgments could affect whether this whole thing goes to court. And appeals ultimately reach the state Supreme Court.
So could Magnuson and Anderson help decide a matter they’ve already weighed in on?
Short answer: they can do what they like. According to a court spokesperson, “Each justice makes his or her own decisions on recusal on a case-by-case basis. No recusal decisions have been made regarding potential future appeals related to the U.S. Senate election.”
The U.S. Supreme Court also uses this paradigm; you may remember when Antonin Scalia refused to recuse himself from a case involving Dick Cheney a few years ago, even though they were hunting buddies.
Magnuson and Anderson are extremely well thought of. Their Republican party ties — Magnuson is a good friend of Tim Pawlenty’s, and Anderson was a state GOP lawyer for a decade — are seen mostly as a symbolic counterweight to DFL Secretary of State Mark Ritchie, who has also pledged to strictly interpret the law. (Two other canvass board judges from Ramsey County District Court have no clear DFL or GOP ties.)
Still, we’re all human, with biases that manifest themselves despite our claims and best efforts. Canvass Board members will provide ample proof or refutation, since their decisions will get tremendous public scrutiny.
But on some level, if Republican-appointed judges wind up recusing themselves later, that could flip a near-term Canvass Board advantage into a long-run GOP sacrifice.
Currently, a majority of the seven-member Supreme Court are Pawlenty appointees. If Magnuson and Anderson step aside, remaining justices would include two Pawlenty picks (Christopher Dietzen, Lorie Gildea), a Ventura nominee (Helen Meyer), an Arne Carlson appointee (Paul H. Anderson) and Alan Page, who ascended to the court via election.
I don’t think it would ever get this far — I do not think our justices are partisan a la Scalia’s crew in Bush v. Gore — but if the state court’s ability to self-regulate becomes an issue, ultimately, the Democratic-controlled U.S. Senate picks its own members.