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Coleman / Franken Election Dispute:

Rick Hasen (Election Law Blog) on the ruling just handed down in Franken's favor.

My Middle Name Is Ralph:
No independent expert thinks coleman has any chance of winning. The only purpose of appeal is to delay the seating of Franken. When will the cost in reputation to Coleman and the Republican Party outweigh the benefit to them of delaying Franken from voting?
4.13.2009 10:59pm
cboldt (mail):
-- The only purpose of appeal is to delay the seating of Franken. --
.
No. In addition to delaying the seating of Franken (which is not a certainty under law), resort to appeal also exemplifies the power of the rule of law.
.
-- When will the cost in reputation to Coleman and the Republican Party outweigh the benefit to them of delaying Franken from voting? --
.
That political calculation cuts both ways. Those who believe in the value of law would say "Bully for Coleman," for exercising all of his legal rights.
4.13.2009 11:17pm
Bobo Linq (mail):

Those who believe in the value of law would say "Bully for Coleman," for exercising all of his legal rights.

One can "believe in the value of law" and still not think that it makes sense, or is a good idea, to pursue appeals just because they are procedurally possible.
4.13.2009 11:30pm
My Middle Name Is Ralph:

No. In addition to delaying the seating of Franken (which is not a certainty under law), resort to appeal also exemplifies the power of the rule of law.


Well, I had thought everyone agrees that appeal to the MN Supreme Court delays the seating of Franken. I agree that seeking cert or filing a new fed ct action may not delay Franken's seating.

I am interested in your argument that "appeal also exemplifies the power of the rule of law." Perhaps I'm misunderstanding your point, but it seems to be that appeal for appeal's sake is a good thing. Your point would seem to apply equally to every civil and criminal case containing any appellate issue (i.e., virtually every case). No appellate lawyer or judge I've ever known would agree with that proposition.


That political calculation cuts both ways. Those who believe in the value of law would say "Bully for Coleman," for exercising all of his legal rights.


Belief in the rule of law does not imply that every thing under the sun should be litigated. Just because one has a legal right to do something does not mean that one should do it.
4.13.2009 11:39pm
AndrewK (mail):
Comments again reach well-trodden ground. Whatever outside experts say, the dispute is not over, and that uncertainty validates whatever either party does. In fact, one might argue that by failing to appeal, Coleman would be treating the whole dispute up until this point as sunk costs, when the marginal cost of validating the whole process is relatively low. So if Coleman gave up, a Franken supporter could probably still find grounds to criticize him.

So let's lay off, wait, and see.
4.14.2009 12:04am
theobromophile (www):
Doesn't this whole thing - with Coleman winning the first count, and Franken winning on a recount, and with messed-up numbers on both (IIRC) - beg for a legislative solution? While it couldn't affect the current race, a law that mandates a re-vote (not a recount) in case of a close election would obviate the need for these issues in the future.
4.14.2009 12:11am
cboldt (mail):
-- Well, I had thought everyone agrees that appeal to the MN Supreme Court delays the seating of Franken. --
.
My parenthetical as to "guarantee" was not to guarantee of delay. With presence of appeal, delay is obviously a certainty. The absence of certainty was as to the certainty of seating Franken, not as to the certainty of delay. Certainly isn't secured until the appeals are exhausted.
4.14.2009 12:20am
Kazinski:
While the delay must be frustrating for both Franken and his supporters, they can take heart in the fact that the Senate isn't having any trouble rubber stamping all of Obama's spending bills in the meantime.
4.14.2009 12:31am
Psalm91 (mail):
This case is just the first in the Ben Ginsberg pattern now being replayed in the 20th House District in New York,where the Republican filed a challenge before the voting was finished. Every election at all close will be challenged. The delay for purposes of delay strategy in this case has been successful as a partisan tactic, which Kyl admitted was its only purpose.
4.14.2009 12:41am
loki13 (mail):

Doesn't this whole thing - with Coleman winning the first count, and Franken winning on a recount, and with messed-up numbers on both (IIRC) - beg for a legislative solution?


Uh, yeah. There was a legislative solution. If the vote count fell within a specified margin, there was an automatic re-count (remember the whole Coleman "don't waste the taxpayer money on a recount" meme?). There is not, on the other hand, a provision for a re-vote. There are a number of policy reasons, as a general matter, to avoid special elections (they tend to have very different voter demographics for starters than general elections). I'm not sure why "count every vote" is a problem.

The main problem that the Coleman camp continued running into was articulating a standard that would somehow seem neutrally applied and yet result in their ballots being counted while Franken's ballots would be disallowed when Franken had (barely) more ballots cast for him. C'est la vie.
4.14.2009 12:43am
My Middle Name Is Ralph:

While it couldn't affect the current race, a law that mandates a re-vote (not a recount) in case of a close election would obviate the need for these issues in the future.


What qualifies as "close?" Whatever cutoff point you select just moves the point over which people are fighting. For example, if you had to win by 1% of the total votes cast, what happens when actual result comes in right around 1%? Then we have recounts and legal fights to determine whether one candidate reached the number necessary to avoid a re-vote.
4.14.2009 1:35am
David Welker (www):

Doesn't this whole thing - with Coleman winning the first count, and Franken winning on a recount, and with messed-up numbers on both (IIRC) - beg for a legislative solution? While it couldn't affect the current race, a law that mandates a re-vote (not a recount) in case of a close election would obviate the need for these issues in the future.


This sounds like an eminently reasonable position to me.
4.14.2009 2:29am
josh bornstein (mail) (www):
This sounds like an eminently reasonable position to me.

It is. It is also equally reasonable for a state to decide that, instead of the delay and cost of a new election (which, as has been pointed out already, will likely have different demographics than the original election), they will have a recount.

When my side loses (e.g. Bush v Gore), I'd rather have a whole new election. When my side wins, I'd rather stick with the recount. [sarcasm]

This whole issue is *way* out of my area of legal expertise, but I see lots of fascinating scenarios out there. What if the governor was not a partisan Republican? Would (could??) a federal court enjoin him from signing off on Franken's election to the senate, assuming the governor was about to do that? If the case did go up to the US Supreme Court, and they somehow found for Coleman, could the Senate say, "screw you, SCOTUS, we're gonna seat who we want to seat!"? Have there ever been any cases laying out what power the federal courts have in determining who can get into the Senate, or, laying out any restrictions on the Senate's power to make those decisions?
4.14.2009 3:36am
Federal Dog:
The bromophile is right. When the vote is this close, and irregular counting may affect the outcome, a run-off is called for.
4.14.2009 7:38am
zuch (mail) (www):
Federal Dog:
The bromophile is right. When the vote is this close, and irregular counting may affect the outcome, a run-off is called for.
Why? (assuming arguendo there was "irregular counting", something that Coleman seems to have failed to prove). Coin flips are used for actual ties is some places. If the (perhaps imperfect) actual tally gives one party the edge, that's the most likely outcome, so you may as well put that person in (fairer than the coin flip for the actual tie). Second-guessing accuracy of elections, and handing out "do-overs" seems a rather bad policy choice. While you're at it, why not insist on a statistically almost "certain" 75%-25% margin. Then we'd know what the voters wanted ... but we may have to wait a few centuries before we get that kind of an "accurate" vote. Oh well...

Cheers,
4.14.2009 8:33am
cboldt (mail):
-- your argument that "appeal also exemplifies the power of the rule of law." Perhaps I'm misunderstanding your point, but it seems to be that appeal for appeal's sake is a good thing. --
.
My point wasn't that "appeal for appeal's sake is a good thing." My point was the right to an appeal can be, of its own right, a powerful tool. The phrase I used was "exemplifies the power." See too the power of using of the time windows inherent in the "slow but fine wheels of justice" as wielded by Larry "Wide Stance" Craig and that Democratic crook (redundancy alert) William "Cold Cash" Jefferson.
4.14.2009 8:59am
David Hecht (mail):
Speaking as a conservative Republican who believes that Bush won Florida, but that the SC should have let the HoR decide (as per Amendment XII, paragraph 3) under the "political questions" doctrine, my view is this:

1. Elections have winners and losers.
2. Sometimes you lose fair and square, sometimes not.
3. Sometimes when you don't, it's because the other guy stole the election.
4. NEVERTHELESS, in most instances it is best to let the result stand.

Why? Because the PERCEPTION of the legitimacy of the process counts for a lot. If elections are being stolen left and right (no pun intended), people will gradually lost confidence in the ability of the system. HOWEVER, it is equally true that if every close election is contested and indeed litigated, with or without cause (I'm thinking of, e.g., FL-13 [Jennings-Buchanan] in 2006), people will also lose confidence in the process.

I have watched elections for over 30 years. I was actually living in NH when the (Democrat-controlled) U.S. Senate took away Louis Wyman's (R) Senate seat in a close election by rejecting his certification by the state board of elections and ordering a revote.

I was not happy then, and I'm not particularly happy about Coleman's actions now: I think when it became clear that--irregularities or not--he wasn't going to change the outcome, he should have thrown it in. Similarly, I think it's ludicrous to suggest that Ted Stevens should have any recourse (revote or otherwise) in Alaska: again, he lost unambiguously, even though you could certainly debate whether he lost "fair and square."

The late Richard Nixon set the bar for this back in 1960 when he chose not to contest the outcome of the Presidential election. I'd like to believe that both Democrats and Republicans could agree to live up to a standard set by Tricky Dick.
4.14.2009 9:59am
PLR:
Speaking as a conservative Republican who believes that Bush won Florida ...

Speaking as an independent who believes it is not possible to know who would have won Florida if Katherine Harris hadn't tossed out votes in key counties, that was an excellent post.
4.14.2009 10:15am
Per Son:
As a lib who knows nothing about the issues and wants Franken seated, I say to Coleman: "Appeal away, and I would probably do the same."

I think most are driven by their party affiliation in this brouhaha. Whether Coleman is hurting himself (or the taxpayers of Minnesota - heck, he said the same thing about Franken) or helping is an issue for the voters of Minnesota.
4.14.2009 10:17am
resh (mail):
"I'd like to believe that both Democrats and Republicans could agree to live up to a standard set by Tricky Dick."

Oh, you can rest easily then, if not necessarily due to the vagaries of your script.
4.14.2009 10:18am
Alex R:
I've seen a number of times -- including a NY Times Op Ed -- the idea that theobromophile proposed, or some modification of that idea, that "close" elections should automatically result in some type of alternative resolution procedure, such as a revote or a coin flip. The idea seems to be that this would reduce the amount of contention and litigation in these cases.

A little thought, though, should convince anyone that this idea is completely likely to be ineffective, and in fact would even be counterproductive. If the margin of "closeness" is set to be *very* small -- a few votes, say -- than it wouldn't have much effect at all; any election that close would be subject to dispute anyway. But if the legal margin of closeness is large enough to make a difference -- let's propose 0.5% of the vote, then there are now *two* election outcomes (for an election with two major candidates) which can result in litigation and contention: Candidate A leads Candidate B by 0.5%, and Candidate B leads Candidate A by 0.5%. Either case is sure to result in litigation, as the leading candidate will want very much the original election to secure his or her victory, and the trailing candidate will want to take advantage of the alternative procedure. So in fact, the chance of a contested election may be as much as twice as likely as under the current "system".

So, despite the obvious flaws of the current process, the best approach still must be to make every effort to find out which candidate actually received the most votes, and award the election to that candidate.
4.14.2009 10:28am
loki13 (mail):
David Hecht,

Excellent post. I agree with your points.

But I just wanted to delve deeper into the 'do over' psychology that seems to permeate some people. Why not expand it into other areas?

If a baseball game is decided by a certain amount (say, one run) or not until the last inning, clearly we should play it again because there was *probably* some umpiring error or other strange occurrence that unfairly impacted one of the teams.

And in football, if the final result is within six points, or either team scores to take the lead in the last two minutes, clearly we need a do-over as well.

And in soccer... uh, yeah, those should all be do-overs.

Think of other areas of life! Asking for raises? Taking tests? How about when you ask the pretty girl to go to the prom with you and she says no (well, she hesitated for a second, so that's a definite do-over). Finality is so overrated; besides, it's not like there's ever another election to "change the result" in 2/4/6 years, right?
4.14.2009 10:34am
J. Aldridge:
Franken owes Judge Dale Lindman a great deal of thanks. He instructed Ramsey County to provide Franken's campaign with "existing written information regarding the reason for accepting or rejecting an absentee ballot." This allowed Franken to argue many rejected ballots were legally defined as "votes validly cast" and could be included in a recount, something the law disallowed.
4.14.2009 10:47am
David M. Nieporent (www):
The bromophile is right. When the vote is this close, and irregular counting may affect the outcome, a run-off is called for.
Eh. Just flip a coin. It would (a) save a lot of time, (b) save a ton of money, and (c) be just as "accurate" in reflecting the choice of the voters.

The big problem we see with these elections is not in the physical tallying of ballots -- although there is in fact an error margin in any count, and you don't eliminate that error margin with a recount -- but in the interpreting of disputed ballots in the first place. That is, trying to decide who the voter was trying to vote for. (I guess there's also an issue as to whether a given voter was legally allowed to vote; the fact that we have so many problems getting the answer to that simple question straight is depressing.)

What we actually need is to stop this nonsense about "intent of the voter," which introduces partisanly-tainted subjectivity into the process. Oh, sure, you get people saying, "Well, yes, this person didn't follow the rules, but it's obvious who the vote was for, so we should count it" but there's no bright line for "obvious." If you don't follow a policy of requiring strict compliance with the rules, you'll always get many ballots that are "obvious" only to partisans, which means many chances for litigation over standards.

Have the ballots be designed to be machine-countable (but not with chads, please). Run the ballots through the machine. Whatever it counts, that's your outcome. Unless you locate a batch of ballots that was inadvertently not run through the machine, there's no reason to do anything else, regardless of how close the outcome was.
4.14.2009 10:50am
Tim McDonald:
The problem is, reasonable people have come to doubt the integrity of the election process. I hate to say it, but I really do believe that many of the votes "found" for Franken were manufactured at the county precinct level.

While Chicago is known for crooked votes, and Detroit appears to be headed the same way, Minnesota is a new addition to the list of places where I do not trust the vote totals.

THAT is the danger inherent in all the court challenges and recounts we have had since 2000, and is a real threat to our republic. If people come to widely regard elections as fixed, then the government has no moral authority in the eyes of its citizens, and that will lead to anarchy, then tyranny.

That said, I have no idea who won in Minnesota, but I do know I don't trust the process to give us the winner in a close election. Which is a sad commentary on the state of American politics.
4.14.2009 11:24am
Thales (mail) (www):
"The problem is, reasonable people have come to doubt the integrity of the election process. I hate to say it, but I really do believe that many of the votes "found" for Franken were manufactured at the county precinct level."

Do you have any reasonable grounds for this deeply-held belief? It looks to me like it was an extremely close election and that MN law and the courts are showing us how to resolve such disputes rationally.

I can't really fault Coleman for exercising his legal rights-I'd probably do it too if my career was at stake. But I can fault Pawlenty for obnoxiously refusing to certify and other blowhards for sticking their necks in in an uber-partisan manner. The public facts don't warrant an optimistic assessment of Coleman's chances or the belief that Franken somehow stole the election.
4.14.2009 12:08pm
Steve P. (mail):
4. NEVERTHELESS, in most instances it is best to let the result stand.

Why? Because the PERCEPTION of the legitimacy of the process counts for a lot. If elections are being stolen left and right (no pun intended), people will gradually lost confidence in the ability of the system.

I can't agree with this at all. The legitimacy of the process should be verified through checks and balances, and in public view to all. If elections are getting stolen right and left, we shouldn't hide it so the plebians can sleep better at night.

I want to know that every time corruption is exposed, something is being done to address the problem. We should follow the letter of the law in these close/"stolen" elections, and if that isn't enough, we now know what to have the legislature change for the next close/stolen election.

I also think a revote is a difficult thing to do well. There are additional costs (hiring/training pollworkers, renting out gymnasiums, moving polling machines / ballots around), the demographics are often completely different from a general election, and there are a host of legal issues that arise. Can you keep running ads between the different votes? What if state matching funds are involved? Also, for every time that this happens for a really important position (house of reps, state senate, governor), it happens a hundred times for county comptrollers and city auditors. It seems simpler and easier to keep the process consistent.
4.14.2009 1:15pm
zuch (mail) (www):
David M. Nieporent:
Eh. Just flip a coin. It would (a) save a lot of time, (b) save a ton of money, and (c) be just as "accurate" in reflecting the choice of the voters.
I addressed that above. If the actual count is numerically tied, yes. If not, the one with the most tallied votes is the best bet as to who won, and should be declared winner. To do anything else (revote or coin flip) is simply unfair.

Cheers,
4.14.2009 1:51pm
zuch (mail) (www):
David M. Nieporent:
Eh. Just flip a coin. It would (a) save a lot of time, (b) save a ton of money, and (c) be just as "accurate" in reflecting the choice of the voters.
I addressed that above. If the actual count is numerically tied, yes. If not, the one with the most tallied votes is the best bet as to who won, and should be declared winner. To do anything else (revote or coin flip) is simply unfair.

Cheers,
4.14.2009 1:51pm
pintler:

While it couldn't affect the current race, a law that mandates a re-vote (not a recount) in case of a close election would obviate the need for these issues in the future.


...and when the re-vote is just as close as the first one? Sounds like a recipe for an infinite loop.

People get passionate about close elections because they believe their preferred candidate is the 'best' one, but I'd like to redefine 'best' in the way a statistician would - the 'best' candidate is the one who would be elected, if we could know the mind of every voter at a particular instant in time. Unfortunately, we will never know that. When you start talking fractional percentage vote differences, it matters whether the snow started early or late on election day, how good of a football game was on Monday night football the day before election Tuesday, etc. All those will cause different demographic groups to go to the polls in slightly different numbers. In the statistical sense, fractional percentage differences mean you can't determine who the theoretical 'best' candidate is; you can only say that the difference in their (to coin a word) 'bestness' is very, very small.

I agree with the previous posters that say run the ballots through the machine, and unless you can reasonably posit something in the process that systematically favors one candidate, live with the first count.
4.14.2009 3:31pm
zuch (mail) (www):
David M. Nieporent:
Have the ballots be designed to be machine-countable (but not with chads, please). Run the ballots through the machine.
... with a bit of dust on the lens of the sensor reading the "D" (or "R") column. Not enough to invalidate all such votes, but enough to throw out a significant number of those only lightly marked. Rrrrrriiiggghhht.

Cheers,
4.14.2009 4:06pm
byomtov (mail):
Revotes are plainly a foolish idea, for reasons cited by Alex R, and pintler, among others. You have no guarantee that the revote won't be just as close, and you increase the chances of litigation on the first vote, because there are now two critical points rather than one.
4.14.2009 8:43pm

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