Minnesota is not Florida. We are colder, snowier, and we run our elections better than the Sunshine State. As the battle over the Minnesota Senate race between Al Franken and Norm Coleman drags into the second month of the contest stage, with no immediate end in sight, comparisons to Florida 2000 are increasingly drawn, and appeals to the court case that ended the presidential race in that state — Bush v Gore — hangs over this election marathon. Despite assertions by the Wall Street Journal crowd and University of St. Thomas law professor Michael Paulson in a recent Wall Street Journal op-ed piece reprinted in the Pioneer Press, the Minnesota recount demonstrates not what is wrong with elections but what is right — and how public officials can conduct themselves to serve the public good.
Florida 2000 has multiple meanings. It conjures images of shoddy election administration, a partisan secretary of state, hanging chads, voter fraud and suppression, acrimonious litigation, and an eventual partisan Supreme Court decision that ended a recount and selected the president. Florida 2000 represents all that is wrong with how elections are run.
Dispute shows strengths, not Florida-style weaknesses
Minnesota is no Florida. The post-election dispute, which has already gone longer than it did in Florida 2000, demonstrates the strengths of Minnesota’s election process.
On election night incumbent, Norm Coleman led challenger Al Franken by merely a few hundred votes. The difference between the two was so slim that it triggered the automatic recount under state law. In Florida, efforts to recount ballots in four counties revealed election officials applying different standards to hanging, dimpled and three-cornered chads as they sought to determine voter intent. But Minnesota has a state law explaining voter intent, and the recount was statewide. No one except the most cynical partisan believes that local election officials or the Canvassing Board acted in a partisan fashion, or that our secretary of state is another Katherine Harris.
Of the 2.9 million ballots cast, the battle for the Minnesota Senate came down to disputes surrounding a couple of thousand ballots representing less than one-quarter of one-percent of all votes cast. The two candidates challenged a couple of thousand ballots. There were concerns about counting 1,500 ballots that local election officials admitted were wrongly rejected in violation of state law. The number of lost or duplicate ballots was less than 300, and state law was followed in terms of how to address this problem. Norm Coleman additionally challenged another group of votes he thought ought to be included, although there is no evidence they were wrongly rejected. Minnesota’s election system produced 99.75 percent or greater accuracy.
Rhetoric of Florida used by both sides
While Minnesota’s recount process does not look like Florida 2000, its image has been invoked by the two candidates and their defenders. The rhetorical battle of Florida 2000 has been used by both sides, claiming that the other side is seeking to manipulate the count. Franken, in asking that absentee ballots wrongly rejected by election officials be included, demanded that every vote should count. He also argued that the legal ruling of Bush v. Gore — that the equal-protection clause demands that all votes be treated the same — required these votes to be included.
Conversely, Coleman invoked Bush v. Gore in his arguments that letting counties voluntarily tabulate these absentee ballots without providing statewide guidance to how to include and count them similarly was an equal-protection violation. He argued this despite the fact that state law was clearly violated in not counting them. Three times during the recount he went to court seeking to suppress votes from being counted, invoking Bush v. Gore as his legal mantra. All three times he was rejected by a court composed of majority Republicans. Now he and other critics again raise Bush v. Gore in the contest stage of the election dispute, claiming certain ballots should have been counted and others rejected.
Thus far Coleman and his supporters offered no firm proof of fraud, double-counting of ballots, or other irregularities. In all stages of the recount state law and common-sense rules of evidence prevailed and guided the decisions that were made. Any irregularities that emerged in the recount were produced as a result of Coleman’s efforts to suppress votes. Now that he is contesting the election, Coleman should not be allowed to exploit them as violations of Bush v. Gore because he created the alleged problems himself.
Tactical use of 2000 case
Finally, Coleman’s use of Bush v. Gore is tactical, aimed at building an appeal when he loses the current case in St. Paul. His legal team has failed to offer any real evidence of an equal-protection violation, yet it persists in raising this claim. This claim, along with a recent YouTube video by GOP leaders asking for donations to Coleman’s legal defense fund, suggest that they aim to delay resolution of this matter as long as possible. Keeping Franken out prevents the seating of a 59th Democrat and moving Democrats one seat closer to a filibuster proof majority.
Despite all the legal and political wrangling in Minnesota, the recount was fair. The lesson to be learned from Minnesota is that we can do better than the mistakes of Bush v. Gore and run elections that are accurate and fair.
David Schultz is a Hamline University professor in St Paul, Minnesota where he teaches classes in election law and government ethics.