[Image courtesy of MinnPost]
After Minnesota took eight excruciating months to decide that Al Franken had beaten Norm Coleman in the 2008 U.S. Senate race, followed by the close (but not nearly as close as Coleman-Franken) 2010 gubernatorial race which resulted in a recount and raised the possibility that no winner would be sworn in on inauguration day, Minnesotans may feel a little cursed, a little shell-shocked and occasionally wondering what the rest of the country thinks is wrong with us election-wise.
Those two experiences do suggest that – contrary to its national reputation as a solid blue state – Minnesota is very evenly divided politically in state races. But to those who understand the law and mechanics of elections, the two recounts also showed the Minnesota is a national model in the nuts and bolts of running elections and, when the elections are very close, running recounts that that inspire trust.
At least that was the overwhelming sense of a panel of election experts that met yesterday at the University of Minnesota’s Humphrey School.
Ned Foley, a law professor at Moritz College of Law (that’s at Ohio State University) is a top election law expert who is directing a national program for the American Law Institute to develop model laws and practices for states around the country.
At yesterday’s panel, Foley – who closely followed the recent Minnesota recounts – said that Minnesota did a great job on both recounts and at every level, from the work of the local election officials to the ability of the state court system to reach unanimous verdicts on the major questions that arose, despite the presence of judges with both DFL and Republican backgrounds.
Coming from Ohio – where Foley said each of the last four election cycles has produced litigation challenging the legitimacy of the outcomes and where public confidence in the fairness of the process is justifiably low – he was particularly impressed with Minnesota’s ability to produce results that “had legitimacy,” “deserved public respect and trust,” and demonstrated an overriding value on leaving the electorate with confidence that democracy had worked.
Slow is awkward
The length of the Senate recount was awkward. One of Minnesota’s U.S. Senate seats was vacant from January to June – and this occurred at a time in the first year of the Obama Administration when the Democrats were one vote short of a filibuster-proof majority.
And the idea of a comparable delay in a race for governor or even president raises even more frightening prospects, since those executive positions could not be allowed to remain vacant. So the panel discussed how to address that problem is is occurred in a race for governor or president.
Former U.S. Attorney David Lillehaug, who worked for the DFL side on both the recount cases, had a a few concrete suggestions:
- Clarify and strengthen the power of the state Canvassing Board, which has the first crack at resolving some of the issues in a recount situation.
- Authorize the Canvassing Board to issue a “provisional” certificate of election that would allow the seat, whether for senator or governor, to be filled by the apparent winner of the election, subject to the possibility that the subsequent appeals might change the outcome, in which case the provisional winner would have to yield the office.
- Change the law (although this would require a state constitutional amendment) that puts two members of the state Supreme Court on the Canvassing Board because, as happened in the Franken-Coleman case, those two justices must then disqualify themselves from hearing the final appeal in such a case.
- Reduce the threshold for an automatic, publicly-financed recount from the current law (races that are decided by less than one-half of one percentage point of the vote) to one quarter of one percentage point. (At that level, the Franken-Coleman race would still have easily qualified for a full recount.)
Foley replied on one of those suggestions. The provisional certificate idea might work with a Senate or U.S. House race. But in the case of a governor or president, he questions whether such a plan would constitutional. In the case of a president (assuming one state had issued a provisional ruling on which candidate got its electoral votes) there is no constitutional language suggesting that a president could be sworn in provisionally awaiting a final ruling on the election outcome. One a president is sown in, he said, the only constitutional way to get him out would be impeachment.
How I got on that Canvassing Board
Former Chief Justice Eric Magnuson, who sat on the Canvassing Board in the Senate recount case (and therefore did recuse himself when the Supreme Court heard the final appeal) said that from the time he woke up on the morning after the election what he feared the most was that partisanship or the appearance of partisanship would taint the public’s confidence in the final outcome.
He recalled that when political observers saw that the two justices who would serve on the Canvassing Board (Magnuson and Justice G. Barry Anderson) were both appointees of Republican governors, they wondered how this apparent coup for the Republicans had occurred.
For humorous affect, he told the anecdote of how this had come about. He was notified by the Secretary of State’s Office that he needed to appoint two members to the Canvassing Board. Since he was new to the job, he asked his secretary how this was usually handled. She told him to send an email to all the justices asking for volunteers, and, if nobody volunteered, he should do it himself. She told him it was no big deal and usually involved attending one meeting that would take a half an hour to just look over the preliminary results and finalize them.
So he sent the email around and nobody volunteered. So he sent a second email in which he said he would take one spot, but somebody else had to take the second spot. So Anderson volunteered on the second round. Some partisan coup.
Of course the Canvassing Board gig ended up leading to days and days spent looking at challenged ballots and hearing discussions what standards were used to accept or reject absentee ballots etc. But, contrary to his original fears, none of the issues came down to close votes along partisan lines.
Voter Photo ID
Rachel Smith, who is chief Elections Manager for Hennepin County and held that job for Anoka County at the time of the Coleman Franken recount, was asked about the potential impact of the voter photo ID requirement that will be on the November ballot in Minnesota.
She raised a concern about how the requirement, if it is implemented, will interact with Minnesota’s law allowing Election Day registration. A person who registers on Election Day will presumably show a photo ID at the polling place. But the proposed constitutional amendment says that the person’s identity, and their qualification to vote, must be verified before the vote can be counted. But the workers at the polling place could not be expected to verify, for example, whether the person is a U.S. citizen or whether he might be a former felon who has not yet qualified to get his voting privilege back.
The Photo ID proposal does allow for Minnesota to create a new category of “provisional ballots” to cover situations in which the qualifications to vote are unclear. But if every ballot cast by an Election Day registrant has to be treated as provisional, the numbers could get huge. Smith expects about 100,000 Election Days registration just in Hennepin County, and perhaps three or four times that many statewide. To have that many ballots treated as provisional, which means they wouldn’t be counted until they were verified, would greatly complicate the task of reporting a final result on Election Day.
Lillehaug weighed in against the Voter ID proposal, citing not only the kind of logistical issues Smith had raised, but also objecting that any such proposal to change election laws that passes on a party line vote (as the law putting this proposal on the ballot did) threatens to undermine the public’s trust that the election is being run in a non-partisan manner.
My only quibble with the report is that it left out my favorite line of the day … as the panel drew to a close, I asked each of the panelists what piece of advice they would give to someone in another state facing a disputed election. There were lots of good, serious and substantive suggestions, but Rachel Smith’s final advice made me (and everyone else in the room) laugh out loud:
“Decide what your favorite drink is, and stock up on it in advance.”
Thanks to the panelists for a great session and especially to Eric for thorough write up!