"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.

Religion and Politics...Media loves it

The Sunday Star Tribune front page lead story was "When campaign and cross unite." It dealt with the MFC's efforts to promote informed voting by churchmembers, among other things. Of course, this is viewed as such a novel, almost exotic idea that it invariably garners a lot of media attention every general election cycle.

I think the ongoing media fascination with church involvement stems from the faulty notion of the separation of church and state and the postmodern mindset that faith is a purely private matter which shouldn't be promoted publicly, especially when it comes to politics. This is a historically incorrect understand of the US Constitution's Establishment Clause which was intended to keep the institutions of church and state separate in order to protect religious liberties not muzzle the expression of religious based public views and positions.

One thing which has increased interest, at least at a low level, is the effort by the Alliance Defense Fund to challenge the IRS' 1954 gag rule prohibiting churches and pastors from speaking in support or opposition to particular candidates. The rule which is seldom enforced, and when done so inconsistently, has been used to intimidate churches and pastors to remain silent on on public issues and election involvement in general. The lawsuit will either strike down the rule or force the IRS to clarify exactly what pastors and churches can and can not say and do.

I recently read about the controversy in the 1984 elections when Reagan was very outspoken on the importance of faith in our public life and Mondale argued faith was a private matter which shouldn't be brought into the public arena. This controversy is nothing new.

The mix of religious and politics are as old as the Republic. In further blog posts I'll explore some of the differing opinions among evangelicals on the proper relationship between faith and politics.