The great Recount of 08/09 has reached the point when it’s time to return to the history books and consult the experience of those who remember the Recount of 62/63.
The parallels are not exact, and the times have changed, but there is wisdom to be gained from knowing what happened then. There may even be ways to apply that wisdom to shape the process this time around as it moves forward in its next – and most important – phase: the contest.
Seeing similarities
Minnesota’s 1962 election for governor was one of the nation’s closest in history, just like the state’s 2008 U.S. Senate election. Initial returns showed incumbent Gov. Elmer L. Andersen ahead of challenger Karl Rolvaag by only 58 votes out of 1.2 million cast – a margin that in percentage terms (5 one-thousandths of 1 percent) was much smaller than Coleman’s initial 477-vote lead over Franken (16 one-thousands of 1 percent).
Back then, as now, the post-voting process to determine who really won – or how to determine who legally won, if it was humanly impossible to be sure that any count of the ballots could be guaranteed to accurately identify the winner – was divided into two phases: first, the administrative phase before the state Canvassing Board; and second, the judicial phase before a three-judge court. One difference is that back then a full-scale recount was part of the judicial phase, rather than the preliminary administrative phase, whereas this time it is unlikely that the judicial phase will recount every single ballot again.
Still, there are relevant similarities. In both instances, there were efforts to permit the state Canvassing Board to accept amended returns from local election officials in order to affect which candidate would prevail at that preliminary administrative phase and thus be on top for the judicial phase. Both times this skirmish took place in the Minnesota Supreme Court. (To be clear, the Supreme Court’s involvement over the power of the Canvassing Board is not part of the judicial phase, because at that stage the court’s involvement is not directly “on the merits” of which candidate got which votes, but rather just a turf-determining matter over what the canvassing board can or cannot do.)
Interestingly, both times the Minnesota Supreme Court split 3-2 over the extent of the Canvassing Board’s ability to accept locally amended returns – and both times the court only had five members sitting for the case because two had recused themselves given their service on the Canvassing Board. (This time the court’s 3-2 split occurred in its first ruling over the wrongly rejected absentee ballots; it has been unanimous in subsequent decisions.)
Most importantly, in both situations, there was an acknowledgement that the preliminary work of the state Canvassing Board, even given some extra flexibility to consider amended returns, could not resolve all issues and thus could not moot the legal relevance of the judicial phase. Indeed, it was apparent to all back then that the judicial phase would be decisive in settling who won the election and thus would serve as governor.
Likewise, now that Coleman has filed his contest, it is clear that this time as well the judicial phase will be conclusive – at least so far as Minnesota law is concerned. One difference now is that the U.S. Senate has the power to weigh in on the results of the Minnesota proceedings, whereas there would have been no such recourse regarding the governor’s race back then.
Picking three-judge panel
As the process for deciding the outcome of the 1962 gubernatorial election transitioned from the administrative to judicial phase, there was a recognition that the court responsible for adjudicating the trial over who won should be perceived as fair to both sides in the contest. This recognition was pressed home by controversy that developed over the 3-2 split in the Minnesota Supreme Court in its ruling on the scope of the state Canvassing Board’s authority. Some observers believed that the majority’s ruling unfairly favored Andersen because of partisan sympathies. Others thought this criticism inaccurate but nonetheless recognized that the perception existed.
In any event, the historical record indicates that the chief justice at the time, Oscar Knutson, who had the authority to appoint the court that would decide the contest, wanted to assure that neither side would be in a position to call the court unfair after it announced its decision.
My knowledge of this history comes from two books. I have no independent way over verifying their content, but no reason to distrust them. One book is “Recount,” a thorough narrative of the events surrounding the resolution of the 1962 election. Published in 1964, its authors were Ronald Stinnett, a journalist who covered these events, and Charles Backstrom, a political scientist at the University of Minnesota. The other is the relevant chapter of “A Man’s Reach,” Elmer Andersen’s autobiography published in 2000 and edited by Lori Sturdevant, a former political reporter and now editorial page writer for the Star Tribune. To the extent that I borrow heavily from these two sources, I do so simply in the interest of making knowledge of this history more widely available.
The two books differ somewhat in their account of how Chief Justice Knutson exercised his role as the appointing authority, although not in a way that is inconsistent with each other. But since the details may be relevant to today’s appointment decision, I share each account.
“Recount” relates:
“The DFL lawyers, during this time, had a rumor passed on to them that Chief Justice Oscar Knutson of the Supreme Court suggested, in a private conversation, that the DFL and Republican lawyers should agree on a neutral judge to handle the recount. . . . Sydney Berde [one of Rolvaag’s lawyers], in his legal research, had run across the use of a three-judge panel to settle a problem involving a case on the Iron Range. The DFL lawyers thought that a three-judge panel could be selected by counsel for both sides and could handle all recount matters.
“Just as independently and during the same period, the law firm handling Andersen’s account arrived at the same solution. Both law firms were going to broach the subject at their next conference….”
The book then amusingly describes a wasted two hours of meeting in which neither side was willing to be the first to present this idea, which unbeknownst to both was mutually acceptable. Eventually, the Republican attorney Richard Kyle broke the ice. “Berde [and his DFL colleague William Fine] were pleasantly surprised and taken aback by the very suggestion they were trying to arrive at.” Even more amusingly, these DFLers hemmed and hawed a bit before accepting the proposal, so that they would not look overeager.
The next step was for both sides to agree on the three judges, which “Recount” describes as “the most difficult part of the decision.” Here are details:
“It took only minutes for counsel for both sides to reduce the number of district judges acceptable to both sides from 58 to 6. Then, it took several hours to whittle down those six to the three judges and the substitute judge [in case one had to step aside]. Reduction was done by the lawyers by mutual agreement during Friday night and all day Saturday. Each district judge had his background bared in the bluntest of fashions during these private conferences.”
Once agreement was reached, “the stipulation was drawn [and] Chief Justice Oscar Knutson was called to sign the stipulation that very night,” which he did.
The agreement between the two campaigns yielded a balanced three-judge panel: one judge who had been appointed by a DFL governor, one appointed by a Republican governor, and the third “first appointed a municipal judge by DFL Governor Freeman, and later elevated to District Judge by Republican Governor Elmer L. Andersen [whose reelection was at issue].” “Recount” cutely observes: “Thus, the political complexion of the three-judge panel was split down the middle, even though three members were named.”
Andersen’s autobiography describes Chief Justice Knutson as being more forthrightly pro-active in prodding the two sides to work together to identify three judges for the court:
“He and other justices resented the implication in some national media reports that because four of the seven court members had been either appointed or promoted by me, they were sure to rule in my favor in the end….Knutson directed the recount managers for both candidates to agree on the names of three mutually acceptable jurists to formulate a three-judge panel to oversee the recount. The managers were told to go into a room and not come out until they had three names – even if it took all night. It very nearly did.”
Andersen’s characterization of the panel that emerged from these deliberations is exactly the same as in “Recount.” Of the third judge, Leonard Keyes, Jr., he writes: “Keyes had a mixed political history. He had been named a municipal judge by Freeman and a district judge by me.” He saw this composition, and the method by which it was produced, as achieving overall neutrality to the court.
Whether Chief Justice Knutson’s role in bringing about this neutral-by-mutual-agreement tribunal was as direct as Andersen describes, or indirect in the manner indicated in “Recount,” it turned out to be the key to the eventually successful conclusion to the judicial phase of the process. It took several months for that success to materialize: the trial of an election contest can be painfully slow. (Just ask the citizens of Washington State, where the trial of the contest of their 2004 gubernatorial election lasted until June of 2005. Minnesota’s was relatively speedy in ending in March of 1963.)
Fast-forward to the conclusion of the trial, however, when the three-judge panel unanimously ruled in favor of Rolvaag, the contestant, and ordered Andersen in effect to relinquish the governor’s office (by requiring the secretary of state to certify Rolvaag as the duly elected governor).
Andersen had the right to appeal the three-judge panel’s ruling to the Minnesota Supreme Court, which had ruled in his favor during the administrative phase (albeit by its 3-2 split). But Andersen declined to exercise this right of appeal, despite the encouragement of many Republican supporters that he do so. His lawyers advised him that the court’s ruling had been sound: “Questions of fact had been determined,” he observes in his memoirs, adding that “it would only contribute to the people’s lack of confidence in the system if I asked justices [on the Supreme Court] whom I had appointed to keep me in office.”
Clearly, Andersen would have been more tempted to exercise his right of appeal had the court that had found the facts against him been controlled by judges who could be perceived as biased against his position: say, a 2-1 ruling in which the two were both DFLers. But that circumstance obviously did not exist when his attorneys had equal participation in picking the panel, which was politically balanced, and ruled unanimously against him.
“Recount,” accordingly, unequivocally attributes the success of the contest’s conclusion to the evenhanded composition of the three-judge panel and the method by which its members were appointed. And success is defined not merely by the finality of the court’s decision, bringing closure to the process without the extra delay of an appeal. Instead, the definition of success is more robust: the judgment of the losing side that the outcome was valid and fair, not merely conclusive and legally binding. Here’s “Recount’s” words:
“If anything acted as a regulator making Minnesota’s recount orderly, accurate, and fair, it was the formation of this three-judge panel. During the succeeding three and one-half months, both Republicans and DFL-ers found no grounds on which to criticize adversely the procedures and actions of the judges. Mainly because of the manner in which the recount moved under the close scrutiny and direction of this tribunal, Minnesotans were considered politically mature during this [entire] period when the judicial system was as much on trial as were the legal and political systems.”
Relevance of this history?
The fight over who won the U.S. Senate seat is at the same transitional point, moving from the administrative to judicial phase. If the way in which the three-judge court was picked was so crucial to the success back then, is it possible to replicate that method now?
Justice Alan Page has the appointment authority today, it having been handed to him by Chief Justice Magnuson, who recused himself because of his participation on the state Canvassing Board. Presumably, Justice Page could lock the lawyers for the two campaigns in a room in the way that Andersen’s autobiography describes, until they agree upon three names for this court. But would Justice Page do so, especially after his dissent on the Supreme Court’s decision to require both campaigns to agree on the rejected absentee ballots?
It seems to me that there is an important difference between the two issues. Trying to force agreement on the ballots themselves is trying to force agreement on the substance of the dispute. When the two candidates are vying for votes, which is a zero-sum game after the ballots have been cast, it is unreasonable to expect them agree if there is room for disagreement – and unfair to the voters to subject the fate of their ballots to the strategic considerations of each candidate.
But when the issue is the membership of the three-judge court, it’s procedural not substantive. Both sides should be able to agree to a fair and neutral decision-maker to adjudicate their substantive dispute, even if they can’t be expected to agree on the substance of the dispute itself. Thus, it would not be wrong in principle for Justice Page to try to force the two candidates to negotiate an agreement on the members of the three-judge panel, even in terms of Justice Page’s own dissent.
Still, even assuming that Justice Page would be willing to try this approach, could it work? The Coleman and Franken campaigns have the reputation of being unable to agree on almost anything. Maybe they would stay in the room, deadlocked, with fresh attorneys on each side replacing their colleagues as they drop from fatigue. Nonetheless, given the success of the 62/63 precedent, it is probably important enough to give this approach a shot for a while. What’s the harm in trying?
There may be different methods by which Justice Page could cajole the two sides into an agreement on the three judges. Perhaps a more indirect, less heavy-handed approach would be more successful. He might invite both sides to his office to explore the matter, out of the public limelight so as to reduce the need for political posturing. I’m no expert on the art of diplomacy, even in the context of mediating election lawsuits, and so I leave it to others to suggest the most likely way to get the two sides to agree on the three-judge panel, assuming that one shares the view that this agreement would be good for Minnesota as it was in ’62/’63.
But even if an agreement by the two campaigns is impossible, there is a second-best way to achieve an evenhanded court. It would be for Justice Page to pick two of the three judges, one with an identifiably DFL background and the other with an identifiably Republican background and then let these two judges pick the third member of the panel. It is not quite the same as the candidates themselves picking the neutral judge, but it is the next best thing. It is an approach used in other contexts, as in labor-management arbitration, when labor picks one arbiter, management picks another, and the first two arbiters pick the third.
It is important to emphasize that picking the judges in this way is not designed to have them act politically. On the contrary, the goal is for all three of them to act judicially and impartially, to find the relevant facts as objectively as possibly without trying to favor one candidate or the other. The hope would be that the three judges – as in 1963 – would rule unanimously. That there would be no difference in the way that any of the three judges, regardless of their different political backgrounds, would see the facts. (In this regard, the work of the state Canvassing Board this time was so impressive, and would be a good model for the three-judge court to follow regardless of what method Justice Page uses to appoint its members.)
Even so, it helps to have the judges politically balanced in this way. If regrettably there ends up being a 2-1 split, at least a tie-breaking vote cast by a neutral is the fairest possible version of a fractured outcome. But there is reason to believe that a three-judge panel that is inherently balanced in its composition and picked that way with the specific purpose of being fair to both sides is more likely to end up unanimous in its effort to live up to its mission of being fair.
As described in “Recount,” the three judges back then certainly approached their job that way, leading to that salutary result. There is other evidence to the same effect, but no need to belabor the point here. Isn’t it enough simply to hope that Justice Page, by some method, picks a panel that is perceived by the public as inherently fair as the one in ’62/’63 was perceived – and that this panel renders a decision that both sides also accept as valid and fair, in the same way that Andersen accepted the decision against him?
Edward B. Foley is a professor at the Ohio State University’s Moritz College of Law, where he also directs its election law program.
Want to add your voice?
If you’re interested in joining the discussion by writing a Community Voices article, email Susan Albright at salbright [at] minnpost [dot] com.
Thanks to MinnPost and Professor Foley for an evenhanded historical comparison to our present mess. This kind of reporting has not been done by any other outlet in this town, to my knowledge.
I would only add that Elmer L. Andersen proved time and again that he was an honorable gentleman in his personal and professional life, and a statesman in office. This event was perhaps the most visible indication of his fine character, but it was far from the only one.