Discussion:
The Minnesota Recount Was Unconstitutional
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Ubiquitous
2009-01-16 10:06:20 UTC
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By MICHAEL STOKES PAULSEN

You would think people would learn. The recount in the contest between Norm
Coleman and Al Franken for a seat in the U.S. Senate isn't just embarrassing.
It is unconstitutional.


This is Florida 2000 all over again, but with colder weather. Like that
fiasco, Minnesota's muck of a process violates the Equal Protection Clause of
the U.S. Constitution. Indeed, the controlling Supreme Court decision is none
other than Bush v. Gore.

Remember Florida? Local officials conducting recounts could not decide what
counted as a legal vote. Hanging chads? Dimpled chads? Should "undervotes"
count (where a machine failed to read an incompletely-punched card)? What
about "overvotes" (where voters punched more than one hole)? Different
counties used different standards; different precincts within counties were
inconsistent.

The Florida Supreme Court intervened and made things worse, ordering a
statewide recount of some types of rejected ballots but not others. It
specified no standards for what should count as a valid vote, leaving the
judgment to each county. And it ordered partial recounts already conducted in
some counties (but not others) included in the final tabulation. The result
was chaos.

By a vote of 7-2, Bush v. Gore (2000) ruled that Florida's recount violated
the principle that all votes must be treated uniformly. Applying precedents
dating to the 1960s, the Court found that the Equal Protection Clause meant
that ballots must be treated so as to give every vote equal weight. A state
may not, by "arbitrary and disparate treatment, value one person's vote over
that of another." Florida's lack of standards produced "unequal evaluation of
ballots in several respects." The state's supreme court "ratified this uneven
treatment" and created more of its own, and was unconstitutional.

Bush v. Gore is rightly regarded as controversial -- but not because of its
holding regarding the Equal Protection Clause, which commanded broad agreement
among the justices. The controversy arose because of the remedy the Court
chose for Florida's violation, which was to end the recount entirely. The
majority thought that time was up under Florida law requiring that its results
be submitted in time to be included in the Electoral College count. That
aspect of Bush v. Gore commanded only five votes. Two justices thought Florida
should get more time and another chance.

The problem with the remedy was that it arguably violated the same principle
that led the Court to invalidate the recount: the need to treat all votes
equally. It had the practical effect of awarding the election to Bush (though
subsequent media counts confirmed that Bush won anyway, under any uniform
standard). This has led to enduring partisan criticism of the case, some fair
and some unfair.

But no matter: Bush v. Gore is the law of the land. On the question of how the
Equal Protection Clause applies to state recounts, the ruling, which reflected
a 7-2 majority, controls.

Minnesota is Bush v. Gore reloaded. The details differ, but not in terms of
arbitrariness, lack of uniform standards, inconsistency in how local recounts
were conducted and counted, and strange state court decisions.

Consider the inconsistencies: One county "found" 100 new votes for Mr.
Franken, due to an asserted clerical error. Decision? Add them. Ramsey County
(St. Paul) ended up with 177 more votes than were recorded election day.
Decision? Count them. Hennepin County (Minneapolis, where I voted -- once, to
my knowledge) came up with 133 fewer votes than were recorded by the machines.
Decision? Go with the machines' tally. All told, the recount in 25 precincts
ended up producing more votes than voters who signed in that day.

Then there's Minnesota's (first, so far) state Supreme Court decision, Coleman
v. Ritchie, decided by a vote of 3-2 on Dec. 18. (Two justices recused
themselves because they were members of the state canvassing board.) While not
as bad as Florida's interventions, the Minnesota Supreme Court ordered local
boards to count some previously excluded absentee ballots but not others.
Astonishingly, the court left the decision as to which votes to count to the
two competing campaigns and forbade local election officials to correct errors
on their own.

If Messrs. Franken and Coleman agreed, an absentee ballot could be counted.
Either campaign could veto a vote. Dean Barkley of the Independence Party, who
ran third, was not included in this process.

Thus, citizens' right to vote -- the right to vote! -- was made subject to
political parties' gaming strategies. Insiders agree that Mr. Franken's team
played a far more savvy game than Mr. Coleman's. The margin of Mr. Franken's
current lead is partly the product of a successful
what's-mine-is-mine-what's-yours-is-vetoed strategy, and of the Coleman team's
failure to counter it.

The process is not over yet, since the state court decision in effect kicked
the can down the road. The candidates can revisit these issues by contesting
the legal validity of the election under state law -- which Mr. Coleman's team
did last week.

But as matters stand now, the Minnesota recount is a legal train wreck. The
result, a narrow Franken lead, is plainly invalid. Just as in Bush v. Gore,
the recount has involved "unequal evaluation of ballots in several respect"
and failed to provide "minimal procedural safeguards" of equal treatment of
all ballots. Legally, it does not matter which candidate benefited from all
these differences in treatment. (Mr. Franken did.) The different treatment
makes the results not only unreliable (and suspicious), but unconstitutional.

What is the remedy? Unlike Bush v. Gore, there is no looming national
deadline. Minnesota can take its time and do things right.

This means two things: First, the process must conform to Minnesota election
law. Second, it must conform to Bush v. Gore. Whatever standards Minnesota
uses must be applied uniformly, consistently, and under clear standards not
admitting of local variation. Discrepancies between machine counts and hand
recounts, and between numbers of recorded votes and signed-in voters, however
resolved, must be resolved the same way throughout the state.

The standards for evaluating rejected absentee ballots likewise must be
uniform, with decisions made according to legal standards, not by partisan
campaigns. If the Minnesota Supreme Court fails to assure these things, the
matter could go right up to the U.S. Supreme Court.

And what if there is no reliable way to determine in a recount who won,
consistent with Bush v. Gore's requirements?

The Constitution's answer is a do-over. The 17th Amendment provides: "When
vacancies happen in the representation of any State in the Senate, the
executive authority of such State shall issue writs of election to fill such
vacancies: Provided, That the legislature of any State may empower the
executive thereof to make temporary appointments until the people fill the
vacancies by election as the legislature may direct."

In a sense, a vacancy has already "happened." The U.S. Senate convened on Jan.
6 with only one senator from Minnesota. Still, the seat is perhaps not
"vacant," just unfilled. But if the contest proceeding does not produce a
clear winner that passes constitutional muster, a special election -- and a
temporary appointment by Gov. Tim Pawlenty -- may be the only answer.

For now, the only thing certain is that the present "certified" result --
which is that Mr. Franken won by 225 votes out of more than 2.9 million
cast -- is an obvious, embarrassing violation of the Constitution.

| Mr. Paulsen is professor of law at the University of St. Thomas in
| Minneapolis, Minn. He is formerly associate dean of the University
| of Minnesota Law School.
--
It's now time for healing, and for fixing the damage the Democrats did
to America.
Ubiquitous
2009-01-20 10:14:16 UTC
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Post by Ubiquitous
By MICHAEL STOKES PAULSEN
You would think people would learn. The recount in the contest between Norm
Coleman and Al Franken for a seat in the U.S. Senate isn't just
embarrassing. It is unconstitutional.
This is Florida 2000 all over again, but with colder weather. Like that
fiasco, Minnesota's muck of a process violates the Equal Protection Clause
of the U.S. Constitution. Indeed, the controlling Supreme Court decision
is none other than Bush v. Gore.
And, as we all recall, Bush won the case, so that doesn't bode too
well for Coleman. He's toast.
Actually, the Supreme Court thwarting AlGore's attempt to steal the election
means that Franken is toast as well. Glad I could clear up your confusion.
--
It's now time for healing, and for fixing the damage the Democrats did
to America.
M***@dick.com
2009-01-21 17:33:44 UTC
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Raw Message
On Tue, 20 Jan 2009 5:14:16 -0500, Ubiquitous
Post by Ubiquitous
tually, the Supreme Court thwarting AlGore's attempt to steal the election
means that Franken is toast as well. Glad I could clear up your confusion.
No, actually the USSC did what Conservatives fought
doing and include as one of their fundamental
principle----interferring in states "rights".

The USSC (because they're rightwing) opted to
interpret the constitution in a funny manner to get
their own man elected.

FL adjudicated the law according to THEIR right because
it was 2 conflicting STATE laws that were questioned

Bush sued to force the precincts from counting VOTES
(on ballots) so that His Operative (Harris) could
certify him.

FL rendered an opinion that a "deadline" was
unnecessary

FL also rendered an opinion that the method of
recounting was in accordance with the identical kind of
recounting that Bush actually signed into law in
TX---making any argument silly.

FL also follows most AMerican statutes allowing
recounts 0nly in precincts where the margin of error is
relevant to the difference in size of the lead/loss of
the count.
z
2009-01-21 19:14:19 UTC
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Raw Message
Post by M***@dick.com
On Tue, 20 Jan 2009 5:14:16 -0500, Ubiquitous
Post by Ubiquitous
tually, the Supreme Court thwarting AlGore's attempt to steal the election
means that Franken is toast as well. Glad I could clear up your confusion.
No, actually the USSC did what Conservatives fought
doing and include as one of their fundamental
principle----interferring in states "rights".
The USSC  (because they're rightwing) opted to
interpret the constitution in a funny manner to get
their own man elected.
FL adjudicated the law according to THEIR right because
it was 2 conflicting STATE laws that were questioned
Bush sued to force the precincts from counting VOTES
(on ballots) so that His Operative (Harris) could
certify him.
FL rendered an opinion that a "deadline" was
unnecessary
FL also rendered an opinion that the method of
recounting was in accordance with the identical kind of
recounting that Bush actually signed into law in
TX---making any argument  silly.
FL also follows most AMerican statutes allowing
recounts 0nly in precincts where the margin of error is
relevant to the difference in size of the lead/loss of
the count.
the USSC has no jurisdiction in how states pick their electors, it is
indeed a state's internal business. that's absolutely fundamental to
the whole US constitution and the separation of powers. in previous
cases where a state has been stuck with an internal dispute over a
slate of electors, the supreme court has never had the authority to
rule.
The Weasel
2009-01-23 00:34:35 UTC
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Raw Message
Post by z
Post by M***@dick.com
On Tue, 20 Jan 2009 5:14:16 -0500, Ubiquitous
Post by Ubiquitous
tually, the Supreme Court thwarting AlGore's attempt to steal the election
means thatFrankenis toast as well. Glad I could clear up your confusion.
No, actually the USSC did what Conservatives fought
doing and include as one of their fundamental
principle----interferring in states "rights".
The USSC  (because they're rightwing) opted to
interpret the constitution in a funny manner to get
their own man elected.
FL adjudicated the law according to THEIR right because
it was 2 conflicting STATE laws that were questioned
Bushsued to force the precincts from counting VOTES
(on ballots) so that His Operative (Harris) could
certify him.
FL rendered an opinion that a "deadline" was
unnecessary
FL also rendered an opinion that the method of
recounting was in accordance with the identical kind of
recounting thatBushactually signed into law in
TX---making any argument  silly.
FL also follows most AMerican statutes allowing
recounts 0nly in precincts where the margin of error is
relevant to the difference in size of the lead/loss of
the count.
the USSC has no jurisdiction in how states pick their electors,
Which explains why the USSC waited until Florida had certified their
electors before they took Bush v. Palm Beach and Bush v. Gore.

The state had already acted, thus using your argument, they would not
interfere with the state picking their electors.
Post by z
it is
indeed a state's internal business. that's absolutely fundamental to
the whole US constitution and the separation of powers. in previous
cases where a state has been stuck with an internal dispute over a
slate of electors, the supreme court has never had the authority to
rule.
Your argument proves otherwise.
Governor Swill
2009-01-25 02:13:45 UTC
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Raw Message
Post by z
the USSC has no jurisdiction in how states pick their electors, it is
indeed a state's internal business. that's absolutely fundamental to
the whole US constitution and the separation of powers. in previous
cases where a state has been stuck with an internal dispute over a
slate of electors, the supreme court has never had the authority to
rule.
They could always rule on such a case if it's constitutionality was
questioned in Federal court.

Swill
--
a Guy goes into sex shop and asks for an inflatable doll.
The salesman asks him whether he wants a Christian one or
a Muslim one. Customer asks what's the difference.
The salesman explains that you need a pump for the Christian
doll, but the Muslim one blows itself up. -- Mickey Mosque
The Weasel
2009-01-23 00:31:34 UTC
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Raw Message
Post by M***@dick.com
On Tue, 20 Jan 2009 5:14:16 -0500, Ubiquitous
Post by Ubiquitous
tually, the Supreme Court thwarting AlGore's attempt to steal the election
means thatFrankenis toast as well. Glad I could clear up your confusion.
No, actually the USSC did what Conservatives fought
doing and include as one of their fundamental
principle----interferring in states "rights".
This is false. It is not a question of the rights of the state, it
questioned the right of a state court to override the powers left to
the State Legislature by the US Constitution.

Florida Supreme Court, Chief Justice Wells writing, Gore v. Harris:

"My succinct conclusion is that the majority’s decision to return this
case to the circuit court for a count of the under-votes from either
Miami-Dade County or all counties has no foundation in the law of
Florida as it existed on November 7, 2000, or at any time until the
issuance of this opinion."

http://jurist.law.pitt.edu/election/OP-SC00-2431.pdf

In a 9-0 decision in Bush v. Palm Beach, both Liberal and
Conservatives on the court told the Democrat controlled Florida
Supreme Court that they could not change the laws after the fact.

"Specifically, we are unclear as to the extent to which the Florida
Supreme Court saw the Florida Constitution as circumscribing the
legislature' s authority under Art. II, §1, cl. 2. We are also unclear
as to the consideration the Florida Supreme Court accorded to 3 U. S.
C. §5. The judgment of the Supreme Court of Florida is therefore
vacated, and the case is remanded for further proceedings not
inconsistent with this opinion."

http://jurist.law.pitt.edu/election/electionsup.htm
Post by M***@dick.com
The USSC  (because they're rightwing) opted to
interpret the constitution in a funny manner to get
their own man elected.
This is totally false. There is nothing funny about a decision that
says that identially marked ballots mean the same thing.

Bush v. Gore, Justice Souter writting:

".....But evidence in the record here suggests that a different order
of disparity obtains under rules for determining a voter’s intent that
have been applied (and could continue to be applied) to identical
types of ballots used in identical brands of machines and exhibiting
identical physical characteristics (such as “hanging” or “dimpled”
chads). See, e.g., Tr., at 238—242 (Dec. 2—3, 2000) (testimony of Palm
Beach County Canvassing Board Chairman Judge Charles Burton describing
varying standards applied to imperfectly punched ballots in Palm Beach
County during precertification manual recount); id., at 497—500
(similarly describing varying standards applied in Miami-Dade County);
Tr. of Hearing 8—10 (Dec. 8, 2000) (soliciting from county canvassing
boards proposed protocols for determining voters’ intent but declining
to provide a precise, uniform standard). I can conceive of no
legitimate state interest served by these differing treatments of the
expressions of voters’ fundamental rights. The differences appear
wholly arbitrary."

http://www.law.cornell.edu/supct/html/00-949.ZD1.html
Post by M***@dick.com
FL adjudicated the law according to THEIR right because
it was 2 conflicting STATE laws that were questioned
That has nothing to do with Bush v. Gore, that was Palm Beach v.
Harris. It was that suit and the order from the Democrats on the
Florida Supreme Court that allowed Bush to become the certified winner
of the state.

Once the Florida Supreme Court allowed Bush to become the certified
winner of the state on 11/26/2000, the election was over. Gore could
get all the standardless partial recounts that he wanted, and he still
loses.
Post by M***@dick.com
Bushsued to force the precincts from counting VOTES
(on ballots) so that His Operative (Harris) could
certify him.
The is completely and utterly false. Bush was already the certified
winner of the state BEFORE the USSC took up his cases.
Post by M***@dick.com
FL rendered an opinion that a "deadline" was
unnecessary
This is also completely and utterly false. The Florida Supreme Court
said THREE TIMES that the deadline was FINAL. Even Al Gore agreed that
the deadline was the law of the state of Florida.

"Ignoring the county’s returns is a drastic measure and is appropriate
only if
the returns are submitted to the Department so late that their
inclusion will compromise the integrity of the electoral process in
either of two ways: (1) by precluding a candidate, elector, or
taxpayer from contesting the certification of an election pursuant to
section 102.168; or (2) by precluding Florida voters from
participating fully in the federal electoral process."

http://jurist.law.pitt.edu/election/sc00-2346.pdf

Florida Supreme Court, Gore v. Harris, 12/8/2000:

"This Court, in its prior opinion, and all of the parties agree that
election controversies and contests must be finally and conclusively
determined by December 12, 2000. See 3 U.S.C. § 5."

http://jurist.law.pitt.edu/election/OP-SC00-2431.pdf

Florida Supreme Court, Remand of Palm Beach v. Harris,

"Therefore, in this case involving a presidential election, we
conclude that the reasoned basis for the exercise of the Department's
discretion to ignore amended returns is limited to those instances
where failure to ignore the amended returns will: (1) preclude a
candidate, elector, or taxpayer from contesting the certification of
an election pursuant to section 102.168; or (2) in the case of a
federal election, will result in Florida voters not participating
fully in the federal electoral process, as provided in 3 U.S.C. § 5."

http://jurist.law.pitt.edu/election/sc00-2346-remand.pdf
Post by M***@dick.com
FL also rendered an opinion that the method of
recounting was in accordance with the identical kind of
recounting thatBushactually signed into law in
TX---making any argument  silly.
Once again, this is false. Bush did not sign a Texas law that states
that identically marked ballots do not mean the same thing.
Post by M***@dick.com
FL also follows most AMerican statutes allowing
recounts 0nly in precincts where the margin of error is
relevant to the difference in size of the lead/loss of
the count.
Again, this is false. The Florida codes that deal with recounts did
not mention "margin of error". Of course, if you think otherwise, you
can cite the code.
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