Edward Foley, a professor of election law at Moritz School of Law at Ohio State University, reviews Norm Coleman's appeal to the Minnesota Supreme Court in the Senate race there. One of the things that struck me about this recount is that the issues are so enormously complex. No one was able to describe the problems in a concise enough form to really wrap my brain around it. Foley's analysis confirms my instinct, noting in particular all the complicated state issues, and notes that this complexity raises broader legitimacy questions for whatever happens. Furthermore, these state problems mean that there is a good chance that the Minnesota Supreme Court could remand the case to a lower court before any of the federal courts are even considered.
Anyways, the problems:
These state law issues, regrettably, are not straightforward. Indeed, as I’ve mulled them over since Coleman filed his brief last Thursday, at times I’ve found them mind-numbingly complex, and I’m someone who specializes in election law and has followed this vote-counting dispute from the beginning (meaning since Election Day, last November 4). It worries me that legal questions concerning the resolution of disputed important elections can be so complicated, since I consider it an important value in a democracy that the rules for resolving these disputes be publicly accessible and understandable. But the situation is what it is, and thus all I can do as a specialist in this field is to lay out the issues as best as I can, clarifying or illuminating them when possible.
This complexity is particularly problematic in the context of Minnesota Secretary of State's claim, “…recounts are for really the loser to understand and see and then believe that they in fact did not win the election and for their supporters to come to the same conclusion.”
After the jump, we talk through some of the sample problems that occur in counting absentee ballots.
Consider one question: what was the process for counting absentee ballots, do they need to be properly witnessed, and how could the counters check? It turns out that there are two methods for counting the ballots: by precinct poll workers and by a county absentee boards. Partisan challengers are allowed at the precinct but not at the county boards, which lead to different ways of challenging them later in the process. And precinct workers have no way of checking the validity of witness registrations, while county boards do.
This is just one problem. Foley raises concerns about process:
What should one make of all this uncertainty over the state-law issues in this appeal? I’ve only considered the first of the nine scenarios identified by Coleman, and it seems more than complicated enough. Perhaps the issues will seem clearer after Franken’s brief and Coleman’s reply. But I’m not betting that complete clarity will reign in time for oral argument. And, of course, there are still the federal constitutional questions, even after all the state law issues are resolved (as well as other, non-Bell, issues of procedural bar, which might preclude reaching some of these issues on the merits).
One begins to wonder if practical considerations should overtake rigorous legal analysis in the minds of the Minnesota Supreme Court justices. According to opinion polls, the public is clamoring for this disputed election to be resolved. A remand to the trial court might spark a public outcry.
But, he points out that you can't short-circuit a legal process once started:
Still, Minnesota law undeniably permitted this appeal. Because it did, the Minnesota Supreme Court should adjudicate the appeal according to law, not politics. Therefore, as difficult and complicated as both the state and federal law issues in the appeal may be, the court’s justices must grapple with those issues as best they can using the impartial methods of judicial inquiry. The justices must follow the law wherever it leads them, even if that place is an uncomfortable one politically.
This is going to be a mess, and it'll be long.