WSJ: The Minnesota Recount Was Unconstitutional

There’s an interesting Op Ed by Michael Stokes Paulsen, a professor of law at the University of St. Thomas in Minneapolis in today’s Wall Street Journal. Prof. Paulsen examines the recount procedures being used by Minnesota officials in the senate contest between Norm Coleman and Al Franken.

His conclusion? “Isn’t just embarrassing. It is unconstitutional.”

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. Read the rest…

I’ll confess that I haven’t followed the goings on in Coleman/Franken race that closely but I have read has left a bad taste. If our elections are going to have any integrity there have to be uniform standards that apply equally to all parties… From what I’ve read that doesn’t appear to be the case in Minnesota.

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