The Minnesota lawyers at Powerline have been consistently precise in their coverage of the Minnesota election recount process. If I did not read their posts, I would have little idea of what has been happening. It allows me to translate what passes for factual reporting in the news media (including FoxNews). For example, I might not have known that the Minnesota Supreme Court has unanimously rejected some of Coleman’s legal claims–e.g. concerning the alleged double counting of certain ballots–as inappropriately raised during the “recount phase” of the process and only properly raised during the “contest phase,” which we have just entered. (One of the problems in Bush v. Gore was the Supreme Court of Florida’s willingness to to inject election contest issues into the election recount phase–which was the strategy of the Gore legal team. Because the recount phase was lengthened by litigation, there was not much time left for the contest phase before the electoral college clock ran out.)
While highly critical of Secretary of State Mark Ritchie, they have also been a voice of calm adhering to what my former colleague Professor Dale Nance has called the “presumption of civility.” We ought not presume without evidence that a fellow citizen has violated his or her moral duties to the community. For example, today Scott Johnson posts Overtime in the Minnesota Senate election in which he offers an evaluation of the Coleman team’s approach to the recount process. He also reiterates the following from previous posts:
The media coverage of the events related to Minnesota’s Senate election and subsequent recount has been so poor that it is difficult to determine what happened. The erosion of Senator Coleman’s approximately 700 vote lead over Al Franken on November 5 to the emergence of Al Franken with a 225 vote lead over Senator Coleman on January 5 has given rise to implications that Democrats have stolen the election for Franken.
The Wall Street Journal editorial “Funny business in Minnesota” is representative of this strain of commentary on the canvas and recount. This commentary comes with the underlying theme that Senator Coleman is a victim of Democratic scheming.
From the day following the election, the Franken campaign understood it needed to come up with additonal votes to prevail. Thus the initial “count every vote” mantra that accompanied its litigation regarding rejected absentee ballots. The mantra ceased at the moment Franken took the lead, even though other apparently improperly rejected absentee ballots identified by the Coleman campaign have yet to be counted, and other Franken-leaning absentee ballots appear to have been counted twice.
It is particularly difficult to determine what happened in the recount as it proceeded at locations around the state. There has not to my knowledge been any public airing of grievances. The Board of Canvassers that was convened to preside over the recount and rule on challenged ballots conducted itself honorably under difficult circumstances.
In addition to board chairman Mark Ritchie, the Man from ACORN who is Minnesota’s Secretary of State, four judges served on the board. Minnesota Supreme Court Chief Justice Eric Magnuson, Associate Justice Barry Anderson, and Ramsey County District Court Judges Ed Cleary and Kathleen Gearin filled it out. I have known Chief Justice Magnuson professionally more than 20 years. Justice Anderson was my law school classmate and is a friend. In my view, they are two of the best judges serving in the Minnesota courts. Period.
There was no noticeable partisan division among the board. I reject any imputation of misconduct to the board such as is implicit in the Journal editorial. Whatever inconsistencies the board committed in ruling on challenged ballots and other issues do not result from partisan mischief. [snip]
The fact that very few “improperly rejected” ballots came from Republican counties appears to me to derive in part from the lack of a proper response to the Franken campaign recount strategy. The Coleman campaign has nevertheless identified 654 “improperly rejected” absentee ballots from Republican counties that were excluded from the recount (and that may be included in the election contest).
In a fluid process like a recount, the proper approach is to assume that anything can happen and operate accordingly. Contingency planning is critical. Betting everything on an outcome you don’t control is simply foolish, not just in a recount, but in any endeavor. The Franken campaign outhustled and outsmarted the Coleman campaign. If I were advising Senator Coleman, I would tell him to shake up his team and send in a new quarterback to run the offense now that he has the ball in overtime, i.e., the election contest. I would tell him to send in Dorsey attorney Roger Magnuson from the bench onto the field to lead the team.
Look, I am a former criminal prosecutor from Chicago, not Minneapolis. It was my job to anticipate and avoid the consequences of corruption going on around me. And corruption there was. I also patrolled polling places (with a Cook County Sheriff’s police officer) on election day looking for fraud and, in one instance, voting fraud was committed right in front of me resulting in an arrest and prosecution. So I am as susceptible to cynicism with regard to the Minnesota recount as the next person, which is why I read Powerline both for factual updates and for much-needed perspective.
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