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Reactions to the big Recountland rulings

I’ll briefly give you my own puzzled reaction, then link to a few smart pieces available elsewhere.
Me, I just can’t picture how this trial proceeds, or how it wraps in less than several months.

I’ll briefly give you my own puzzled reaction, then link to a few smart pieces available elsewhere.

Me, I just can’t picture how this trial proceeds, or how it wraps in less than several months. Is the three-judge panel going to afford each of 4,797 ballots  its own mini-trial, with witnesses being called, and examined and cross-examined, on why the ballot should or shouldn’t be counted? That can’t be it. It would take forever. But if that’s not it, how does the court plan to figure out which ballots are in and which are out? Maybe they plan to appoint some kind of special master who would sort out the easy calls — ballots that surely should be counted or rejected — and provide the court with a smaller group that need further study. That might work, although I have no idea if it would meet the legal requirements (I suppose both campaigns would have to have some opportunity to disagree with the special master’s rulings), and the three judges have given no suggestion that they have anything like that in mind. But then, I gather they haven’t said anything about how this will work. MinnPost’s guy at the trial, Jay Weiner, will surely let us know when TheThreeJudges explain the plan.

Now on to a few other reactions:

Nate Silver at FiveThirtyEight, who is known for his expertise with political numbers, says the ruling has to be counted as a victory for Coleman, but as he works the numbers he still believes “Coleman is unlikely to net enough votes from among the 4,800 ballots to pull him ahead of Franken.Like several other commentators, Silver emphasizes that most of these ballots have already been looked at twice by county officials and deemed unacceptable. He’s skeptical that a third look will cause many of them to be counted.

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Over at Powerline, Scott Johnson has a bulleted list of quick insights. He mostly thinks yesterday’s rulings are “a big win for Coleman,” not only because it puts thousands of potential ballots back into play, but because the judges ruled that even a flawed ballot should be counted if the flaws were caused by an action of the election officials rather than the voters. But Johnson, like Silver, assumes that “The likelihood that any given absentee ballot will be found to have been improperly rejected in the course of the election contest is in my estimation not high.”

Prof. Rick Hasen of Loyola Law School, a highly regarded election law scholar who has own blog, writes that although the TheThreeJudges seemed to reject Team Coleman’s effort to use Bush v. Gore as a precedent to widen the playing field, TheThree seem not to have actually addressed the substance of the Coleman argument.

Bush v. Gore is code for “equal protection” which is code, in this case, for the Coleman argument that ballots with similar flaws have to be treated the same everywhere in the state — you can’t have one county accepting my ballot in which, let’s say, the witness didn’t give his address, and another county rejecting yours even though it has the same problem. Since ballots that have already been counted can’t be uncounted (they’re mixed in with the others now and can’t be retrieved), Coleman has used this problem to argue that dramatically lower standard should be adopted for the disputed ballots: even a voter who screwed up his absentee application should be counted because another voter who made a similar mistake was already counted.

TheThreeJudges alluded to Coleman’s Bush v. Gore argument, and seemed to reject it on the grounds that unlike the situation in Florida in 2000, when state law provided no basis for uniform counting of questionable ballots, Minnesota does lay out clearly the criteria for accepting or rejecting an absentee ballot application. But Hasen seems to be saying that that answer doesn’t address the Coleman lawyers’ argument that even if the criteria in the law are clear, if the application is not uniform, it’s a Bush v. Gore equal protection problem.

Writes Hasen: “I am not saying that Coleman had a winning argument there; I am quite skeptical of it. But the three-judge court does not seem to have addressed it.”

Prof. Ned Foley Ohio State, another top election law scholar, also focused some of his reaction on the Bush v. Gore question, but he wondered what impact the ThreeJudges treatment will have on the possibility of future action in federal court, or if the case goes through the Minnesota Supreme Court to the U.S. Supreme Court.

If the ThreeJudges deal substantively with the equal protection argument (we have considered the merits of your equal protection argument and we reject it) it greatly reduces the chances that Coleman (if he loses the state court contest) can start the case over in a federal lawsuit. If TheThree reject the argument on procedural grounds (for example, we are not dealing with the merits of your arguments because you didn’t raise the issue properly) it increases the chance that a federal court will take the case to ensure that the equal protection argument (which is more of a federal than a state issue) gets at least one hearing on substance.

But the ThreeJudges issued two orders yesterday, and the way Foley reads them (in this piece, written for MinnPost), the first ruling rejected Coleman’s Bush v. Gore on procedural grounds and the second rejected it on, possibly tentative, substantive grounds.

Writes Foley: “What difference does it make, one might think, whether Coleman loses his Equal Protection argument procedurally or substantively? …  a procedural-versus-substantive rejection of the Equal Protection argument might — I emphasize ‘might,’ not necessarily ‘will’ — have consequences down the road.  For one thing, because of special rules governing both U.S. Supreme Court review of cases coming directly from state court, as this contest would after a stop at the Minnesota Supreme Court (assuming Coleman would wish to pursue it that far), a procedural rejection of the Equal Protection claim would be a barrier to U.S. Supreme Court review in a way that a substantive rejection of the same claim would not be.  Conversely, a substantive rather than procedural rejection of the Equal Protection claim would make it harder for Coleman to walk over to federal district court, in an effort to pursue that same claim again in a different trial-level court.”