Minnesota's Recount Fiasco Needs New Solution: Kevin Hassett
Commentary by Kevin Hassett
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Dec. 29 (Bloomberg) -- The Minnesota Senate race between Democratic comedian Al Franken and Republican incumbent Norm Coleman has turned toward Franken.
Coleman won the original count by a scant 215 votes. An initial recount reduced that margin to 192. Now, the state's canvassing board, which is resolving the intent of disputed ballots, has given Franken a lead of 46 votes as of Dec. 19.
The counting is far from over, and disputes over election law nuances may linger into next summer. Still, it is looking more like the challenger will win.
A Franken victory isn't a threat to our democracy. It might not even be the incorrect outcome.
Yet any fair-minded person should be concerned about what's going on in Minnesota. Throughout the recount, the state's majority Democratic political machine has been grinding away in Franken's favor. From a dispute over double-counted ballots, to the treatment of rejected absentee forms, Coleman has lost every major dispute with Secretary of State Mark Ritchie, a Democrat, and the state canvassing board, which is controlled by Democrats. Unsympathetic judges have rejected Coleman's appeals.
It's hard to imagine that Coleman is always wrong and Franken always right. So what is really going on in Minnesota?
Tilting the Scales
Thanks to the Internet, we can review the work of the state's canvassing board to determine whether the panel is playing it straight or placing a finger on the scales.
After examining some of the ballots, I'm concerned. Although voter intent seems clear in a large majority of the ballots, in a number of instances the board's judgments seem inconsistent in a way that favors Franken.
Inspect, for example, sample ballots posted on the Web site of the Minneapolis Star Tribune newspaper. In Minnesota, most ballots require voters to make their choices by filling in circles, like the Scholastic Aptitude Test. The darkened circles are then scanned by a counting machine.
One sample ballot shows a filled-in circle for John McCain and Sarah Palin, indicating the voter's intent to select the Republican candidates. In the Senate race, the circle next to Norm Coleman's names is filled in, but there is a faint X through it. This might suggest that the voter intended to cross out, or negate, the vote cast for Coleman. Or it might indicate that the voter made an extra scribble when filling in the circle. That is why the ballot was disputed. In this case, the panel ruled that the vote wasn't for Coleman because the X indicates intent to cancel the darkened circle.
This decision is defensible. If there is an X there, then perhaps the voter didn't intend to vote for Coleman.
Inconsistent Rulings
Consider the next ballot, though, which is almost identical except for two changes. First, the filled-in circle that is crossed out is a potential vote for Franken. Second, the X is much larger and more obvious. And what did the canvassing board decide? It is a vote for Franken.
Calling that ballot a vote for Franken is possible in isolation. But taken together, the two decisions are at odds.
This isn't, it is important to note, evidence of wrongdoing by the board. Any group of individuals making thousands of decisions is bound to make some that are contradictory in retrospect. But at the very least, the appearances are troubling, and the decisions appear by my reading of the ballots to favor Franken.
Tainted Victory
If you examine other ballots, you will see many examples of such disparate treatment. Since this process has potentially flipped the election results, these judgments are highly significant. I am no legal expert, but it seems to me that such inconsistencies could easily be the subject of a successful challenge to a Franken victory.
It is difficult to say how this will turn out. The U.S. Senate will have to vote to seat the winner of the contest, and that vote will be extraordinarily contentious if the impression spreads that either candidate won because of impropriety. A group of Senators can block a candidate from joining their ranks.
All of which suggests that the candidates should agree to a process that recognizes the partisan enmity that has been stoked during the recount, and appoint a bipartisan panel to resolve it.
Since the decisions of the canvassing board have been so important to the outcome of the race, and are so easy to fault, the candidates should appoint two representatives of undisputed moral character, say Bob Dole and Donna Shalala, and ask them to make a final unanimous ruling on each disputed ballot. The candidates could agree to abide by the decisions of these appointees, clearing the way for the Senate to approve the eventual victor.
If such a move isn't made, then the race might drag through the courts for a long time, magnifying partisan hard feelings.
There is still time to change the tone of the Minnesota Senate race. If the candidates fail to act, the eventual victor will likely be characterized by his opponents as illegitimate.
(Kevin Hassett, director of economic-policy studies at the American Enterprise Institute, is a Bloomberg News columnist. He was an adviser to Republican Senator John McCain of Arizona in the 2008 presidential election. The opinions expressed are his own.)
To contact the writer of this column: Kevin Hassett at khassett@aei.org
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