"The Minnesota Recount Was Unconstitutional"

That's the title of St. Thomas Law Professor Michael Paulsen's Wall Street Journal article today.

He writes that the approach taken by the state in counting and not counting votes is a violation of the Constitution as interpreted by the US Supreme Court in its famous 2000 7-2 decision in Bush v. Gore.

He says "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."

He begins by saying, "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."

AP

He makes the humorous observation that this is Florida 2000 but with colder weather. Certainly true today with this morning's temperature minus 22 degrees with a minus 38 degree wind chill.

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.

He reminds us of all the problems with a recount when the stakes were much higher -- the presidency.

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 nub of the problem then as now is not all votes were treated equally. He points out the problems in the Minnesota recount.

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.

Paulsen, interestingly, not only points out the problem but also a remedy for the problem: a temporary appointment and another election. Interestingly, a lot of people I've talked to say they should have another election.

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.

This is a very insightful, well written article. It will be interesting seeing whether the "powers that be" in Minnesota respond to Professor Paulsen's advice.

Will the Coleman-Franken race end in a tie or just plain close?

That's what one analysis came up with. That based on a statistical analysis of voting patterns, undervotes, etc. (Though it should be noted that Coleman picked up another nine votes since the 206 number was out there.)

Some think that problem votes will tilt Franken's direction from new voters and others unfamiliar with the voting process. Others think it will help Coleman because problematic votes will more likely be from elderly voters who would tilt Coleman's way.

Either way, it's sure to be tight.

Be careful what you say in public, especially if you're a political figure

It happened to former Majority Leader Dean Johnson who was caught on tape saying things he later regretted about supposed conversations he had with Minnesota Supreme Court justices.

Well, Secretary of State Mark Ritchie during a television interview said the Coleman campaign was "willing to win [the election recount] at any price." Later, when asked at a press conference about his comment, he said he never said that. Unfortunately for him, both of his comments are on tape. Captured, of course, by the Republican Party. It's now on You Tube.

You can go here to see it.

Buyer's remorse with Franken?

The latest polling returns from the Minnesota Secretary of State show Norm Coleman winning over Al Franken by 462 votes out of 2.42 million votes. It's certainly too close to declare victory by either side in light of a recount next month. (Hopefully, it won't be a rerun of Florida 2000 controversy.)

But looking at the voting numbers, the race shouldn't have been close if another candidate had been in the race for the DFL. Franken had over 360,000 fewer votes than Obama and nearly 400,000 fewer votes than all eight DFL congressional candidates. In other words, a lot of people ticket split between Obama and Franken. Hundreds of thousands couldn't bring themselves to vote for him no doubt because of his work as a SNL satirist and some of his writings on rape and women and mockery of Christians beliefs. While he certainly brought a lot of money to the table, a candidate with a Minnesota "nice" personality and not the baggage would no doubt have done better.

Ventura's back! At least it sounds like it.

In an NPR interview, Jesse Ventura sounds like he's in the US Senate race against Al Franken and Norm Coleman though he hasn't formally announced yet.

He's already coming out with vintage Jesse comments. He calls himself a statesman in an interview with The Midwest Wine Connection. "I'm not a politician, I'm a statesman. I do one term, and then I go back to the private sector. If I get back into the fray again this year, it's only because I've been gone five years back to the private sector. That's what I did when I was mayor. That's a statesman. That's not a career politician."

He criticises Coleman for not working in the private sector and calls Franken an opportunist and a carpetbagger.

And when saying who Minnesotans should vote for he says, "And all you Minnesotans take a good hard look at all three of us and you decide if you were in a dark alley which one of three of us would you want with you."

That last comment makes me wonder what qualities Jesse believes a US Senator should have -- wisdom and good judgment or the ability to win a street fight.

A poll already show Ventura with 23% of the vote in three way race. With Coleman polling 41% and Franken polling 31%. In a two way race between Coleman and Franken the numbers are 52% to 40% respectively.

I think Jesse hurts Franken more than Coleman. Coleman's a known commodity while Franken isn't. Some say Ventura would be a big threat to Coleman because he's polling at 23% support versus 7% before he started to run for governor in 1998. I think the analogy breaks down because Ventura is definitely a known quantity when in 1998 he wasn't. I think some people who supported him previously won't do it again after our experience with him as governor for four years. I do think Coleman has to take him seriously and can't underestimate him which he probably did when running for governor in 1998. Anything could happen in today's turbulent political environment.

It will certainly prove to be an interesting and and entertaining race with a former comedian and a former professional wrestling in the ring with our incumbent US Senator.

Visit to Washington DC energizes pastors to pray, promote civic activism, voter registration and get-out-the-vote

Last week MFI hosted 32 pastors from across Minnesota at David Barton’s Congressional Pastors Briefing and Capitol Heritage Tour in Washington DC.

Before the tour pastors met with staff of Sen. Amy Klobuchar and Sen. Norm Coleman. Klobachar was a last minute no-show. (Pictured on the left is Pastor Bob Battle, Berean Church of God in Christ speaking to Klobuchar staffers. “If you are going to call it a hate crime for me to preach the word of God regarding sin, then you might as well slap the cuffs on me right now. I will not stop!”)

Later, our nations Christian foundation was unavoidable as the pastors toured the paintings in the Capitol Rotunda. According to Barton, the life-size paintings depicted "2 prayer meetings, a bible study and a baptism."* Another painting showed the signers of the Declaration of Independence; 29 of which had seminary degrees.

The second day the pastors met with Christian members of Congress and Senate. Many pastors felt a call to pray for these legislators as they consistenly vote biblically. White House Office of Public Liaison Tim Goeglein, Sen. Sam Brownback, Rep. Randy Forbes and Rep. Marilyn Musgrave especially moved pastors.

The trip was more than just moving; it was a call to action. Many pastors made commitments to participate in get-out-the-vote and voter registration drives, preach sermons on civic involvement and encourage their congregations to be salt and light in their communities.

In the words of the pastors, the trip was “life changing” and “a must for all pastors.”

* Embarkation of the Pilgrims, Baptism of Pocahontas, Discovery of the Mississippi, Landing of Columbus