Overtime Chapter 4: In Minnesota's Coleman vs. Franken U.S. Senate race, the system worked. But here's how to make it better.
After enduring eight months of lawyering and politicking, soberly examining ink-blotted ballots and having its courtrooms overrun by recount lawyers, Minnesota earned high marks for the way it managed the Coleman-Franken recount fracas.
The question is: Do we ever want to do it again?
The ordeal that resulted in sending Democrat Al Franken to Washington to replace Republican Norm Coleman may not be the kind of spotlight any state seeks. But it produced a trove of real-time research into how the nation's highest-voting state runs its elections and where the strengths and weaknesses are.
A consensus is forming that a tune-up rather than an overhaul is in order. The idea that Minnesota should chuck its super-deliberative process in favor of a tiebreaking do-over has not taken root.
The most widely accepted proposal for change is to simplify and standardize the filing and counting of absentee ballots — the "hanging chads" of Minnesota. Some have discussed compressing the post-election process, and others believe the winner of the recount should be seated while his opponent appeals.
Allegations of too-loose registration rules and the potential for fraud, championed by a conservative group, got no boost from Coleman-Franken, which found errors and screw-ups but nothing approaching intentional deceit.
But neither did the idea that the state should make voting easier. After fretting over mismatched signatures, unregistered witnesses and the technicalities
Minnesota benefited from clear laws, which set up a three-step recount-trial-appeal, laid out limits on the reasons an absentee ballot could be rejected and even provided a guide to gauge "voter intent" for oddly marked ballots. Minnesota runs decentralized elections — it has since territorial days, when New Englanders brought their ideas of local government with them — and local variations became Coleman's strongest issue.
The state's judiciary stepped into the spotlight. Three separate panels of jurists, all of them appointed or elected under a system that traditionally emphasizes qualifications over partisanship, looked at the evidence in public forums and acted as a check on each other's work.
One example involves events of Dec. 2-3, the point at which the recount was in great danger of losing all credibility.
Ramsey County announced it had discovered uncounted ballots in a Maplewood precinct, and Minneapolis announced it had lost already-tallied votes. The recommendation of election officials in each case — to add the Maplewood votes to the recount and to go with the Election Night count in Minneapolis — benefited Franken and set off nationwide alarms that the fix was in.
But each succeeding panel — the state canvassing board, which oversaw the recount; the three-judge contest panel, which heard the trial of Coleman's appeal; and the state Supreme Court, hearing the case on appeal from the panel's decision — looked at one or both of those decisions. They were accepted, grudgingly, as the best fixes for bad mistakes.
The election wasn't stolen, as the Wall Street Journal editorial page argues. The lights were on bright, and there were dozens of eminent witnesses. The first lesson to take away is that Minnesota's recount was long, tortuous, expensive — and eminently fair.
LESSONS FROM FLORIDA AND WASHINGTON
Florida and the state of Washington went through similar contested elections and have had many years to fix their systems.
What can we learn from them?
Florida in 2000 was the site of the infamous George W. Bush-Al Gore presidential recount. In Washington in 2004, Democrat Christine Gregoire won the governorship over Republican Dino Rossi after a hand recount and appeal. Those two races, like Minnesota's, were decided by margins in the neighborhood of one-hundredth of 1 percent.
One lesson we could consider would be whether to fill the seat after the recount, even though the appeal is continuing.
Gregoire took office while Rossi pursued an appeal for six months, eventually losing. The U.S. Supreme Court halted further recounts in Florida in time for Bush to be sworn in on Inauguration Day. But Minnesota had an open seat for six months while the court contest and appeal limped along.
We could learn to address our problems carefully — because the cure may be worse than the disease.
Florida dumped its infamous "hanging chad" punch cards and "butterfly ballots" but had a new problem with touch-screen machines — used in a close congressional race in which voters complained that they couldn't see one candidate's name on the ballot. Florida switched again, this time to optical-scanning machines with a paper ballot, like Minnesota uses.
We could learn to admit our mistakes.
Washington state no longer allows what is called "ballot enhancement,'' in which damaged or questionable ballots were marked by election workers. It has clarified how to determine voter intent but also expanded voting by mail, which accounted for 9 in 10 votes in 2006. After a judge determined there were 1,689 illegally cast votes, the state said it made an aggressive effort to purge felons and duplicate names from its registration system and to reform procedures in Seattle's King County.
THE ABSENTEE BALLOT PROBLEM
Florida and Washington began their post-close-race reforms by addressing the most visible problems. In Minnesota, that would be our absentee ballots, both the way they are filled out and the way election officials review and count them.
More Minnesotans voted by absentee in 2008 than ever before. To ensure security, an absentee ballot requires evidence of matching signatures, witnessing by another registered voter and other checks. Some 12,000 to 13,000 were rejected for not meeting the requirements.
Minnesota does not have "provisional" voting, in which a person whose registration is questioned is allowed to cast a vote, subject to later proof of timely registration. That means the pool of rejected absentees was the only source of "new" votes, if it could be shown they should not have been rejected.
It took attorney general's opinions, a trip to Ramsey County District Court and a Supreme Court ruling to get the IRABs identified and counted.
The election vessel sprung a rather large leak. So what is the fix?
State Rep. Laura Brod, R-New Prague, who co-sponsored election-reform bills this year, said this shows the need for "greater consistency in how ballots are counted." Secretary of State Mark Ritchie and others support using a numerical code instead of a signature to ensure security and dropping the requirement that the witness be a registered voter.
In addition, the processing of absentees would be done by county or city absentee-ballot boards — not by overworked precinct workers. That, presumably, would allow for more uniformity. Many voting jurisdictions, including Ramsey County, already do that.
Some of these provisions were in an elections bill that became embroiled in an unrelated election-law fight and which Gov. Tim Pawlenty vetoed. The vetoed bill also addressed problem No. 3 by preventing the courts from allowing candidates to decide which absentee ballots should be counted.
This is a problem that can be solved, or at least made less severe, all sides seem to agree. But election law is always contentious. And the courts relieved some of the pressure to act by saying, in essence, that local variations in the administration of the state's absentee ballot law did not violate Coleman's rights.
We pause for some good news: Most of the 2008 U.S. Senate election went off without a problem.
Voters filled in ovals next to their preferred candidate and fed their sheets into scanning machines and the counts were automatically recorded. Joe Mansky, Ramsey County elections manager, estimated 99.9 percent of all votes were cast and counted without any problems.
Yet, to view the process from a distance or through the prism of partisanship, you would think Minnesota was foundering.
As an example: Election Night totals reported by the media are clearly labeled by the secretary of state as "unofficial." This is because they have not yet been double-checked by election officials and approved by local canvassing boards.
Cities, counties and boards went through and checked their numbers and forwarded any changes along to the secretary of state's office, which regularly updated its totals. This began to look like a conspiracy when it gradually ate away at Coleman's lead.
But the adjustments were sand castles that would be washed away once the recount started and each man's total reverted to zero.
Voters who circled the oval or used a check mark or an "X" generally did not have their vote read by the scanner on Election Day. But during the recount, state voter-intent law orders the canvassing board to count these "squiggled" ballots if at all possible. The board also tried to determine intent for ballots with ovals filled in and also marked with an X and for those with odd names such as "lizard people" written on them.
This process drew a lot of snickering. The voter-intent law is criticized by some as akin to fixing the messy test papers of high-schoolers. One Florida columnist said this meant Minnesota surpassed Florida's chad-checking in electoral weirdness.
But this was an example of the board — the Democratic secretary of state, two Supreme Court justices and two district court judges — trying hard to follow the law.
SHOULD THE SEAT BE LEFT OPEN?
With every noncontroversial vote recounted by hand, the squiggled ballots and IRABs added in, with the Minneapolis and Maplewood votes counted, Franken was certified as the candidate with the most votes by the canvassing board Jan. 5. The new Congress took office the next day.
So why didn't Al Franken join them?
Well, we like process in Minnesota. We like to sit in airless basement rooms on glorious spring days and talk policy. Our recount is what one wag dubbed a "Minnesota Montessori Model," in which everyone gets a chance to speak as long as he or she wants.
Coleman exercised his right under state law to file a contest of the election — a trial of the election before a three-judge panel. He would also appeal the panel's decision to the state Supreme Court. Franken, had he been behind, probably would have done likewise. That added six months to the stalemate.
State law requires both the secretary of state, currently a Democrat, and the governor, currently a Republican, to sign an election certificate allowing a Senate candidate to be seated. Both refused to do so while Coleman's appeals were pending. Franken asked the state Supreme Court to order them to sign, and the court refused.
In the 2004 recount in the state of Washington, Democrat Gregoire took office while her opponent, Rossi, challenged the result in court. The judge hearing the case had the authority to remove her and seat Rossi if he found evidence that overturned the recount results. He ruled for Gregoire.
The issue is: Should Minnesota adopt some kind of "provisional" certification so a candidate who has won a recount can take the seat while the appeals continue? Ritchie favors this, saying most states allow for it. This fixes the problem of nonrepresentation during the long appeal.
But the Washington ruling showed judges are unwilling to overturn even the most questionable elections. And in today's hyperpartisan atmosphere, perhaps it's better to have an empty seat than one both sides lay claim to.
It turns out the world does not end when a state has only one U.S. senator for six months. The Citizens Jury, a group that heard testimony on Minnesota's election system in the summer, decided against recommending a provisional certification, preferring to wait until a winner is determined.
SHOULD THERE BE A DEADLINE?
There was no deadline on Minnesota's process. The court contest was open-ended; Coleman, who brought the case, was granted as much time as he needed (and could afford) to bring in evidence that would overturn the canvassing board's result.
Only one state — New Hampshire, in 1974 — apparently has taken longer to seat a U.S. senator in a disputed recount. "Why is this a good thing?" asks Steven Schier, political science professor at Carleton College. "Why are we proud of this?"
Was time the enemy of credibility in taking the election farther from Nov. 4 and deeper into legal minutiae? That's why Brod said she co-sponsored a runoff bill: because it produces a win at the ballot box, not in the courtroom.
Or did an open-ended process add to the public acceptance of the result by giving each man ample time — the Minnesota Montessori Model — to make his case? The legal process required the candidates to back up their political spin with facts and evidence.
Some believe the time frame could be compressed without stifling the candidate's rights.
Foley, the election law expert, said, "Minnesota didn't necessarily need three fair processes — maybe one or two would have been enough.'' He counts the canvassing board as Step 1, the court contest as Step 2 and the Supreme Court appeal as Step 3. He believes combining steps 1 and 2 would allow Minnesota to certify a winner by early January, in time to take the seat.
Rep. Ryan Winkler, DFL-Golden Valley, who worked on this year's vetoed election bill and is trying to put together a bill for next year, agreed that one alternative is to combine the canvassing board and court contest into a single hearing. "That would be a way of quickening the process without getting rid of the safeguards,'' he said.
State. Rep. Mary Kiffmeyer, R-Big Lake, who preceded Ritchie as secretary of state, believes there should be a strict division between the recount and the court contest. "A recount has one purpose only — to take those ballots counted on Election Night,'' she said. She believes the canvassing board erred by delving into rejected absentee ballots — a legal issue that should have been left for the courts. Under her division of labor, it would be difficult to merge the court contest with the administrative recount.
WHEN IT'S THIS CLOSE, WHY NOT A RUNOFF?
There is one final argument to consider: that the vote-counting instrument is not calibrated finely enough to handle margins measured down to hundredths of 1 percent. Fixing the absentee ballots won't change that, this view holds, and a tiebreaking mechanism such as a runoff or even a coin toss is the only legitimate answer.
Among these dissenters is Schier, a veteran observer of Minnesota's political scene.
"The state courts did what they had to do,'' he said. "But all they did was ratify a false certainty.''
He and Charles Seife, a science writer and New York University journalism professor, argue that the number of mistakes — everything from expected miscounts to improperly rejected absentees to the errors in Minneapolis and Maplewood to normal miscounts by hand and machine — greatly exceeded the margin separating the candidates.
"When the margin is this small, the voters' preferences isn't what determines the outcome,'' said Seife, who came to Minnesota during the recount and is writing a book about numbers in politics. "It's the whims of the legal system."
Seife praises Minnesota's recount and the fairness of its process. But he said Minnesota was attempting the impossible. "You can't measure a bacterium with a school ruler," he said.
Marc Elias, Franken's lead recount lawyer, said a runoff would not "yield greater confidence" than Minnesota's process did. A runoff is expensive for taxpayers. It is removed from the Election Day energy — in this case, from the Barack Obama factor — and generally has a lower turnout. It creates the opportunity for more special-interest advertising and also can end in a razor-close margin.
The election errors were fully reviewed. The recount and court contest looked at every questioned ballot — several times, and with several sets of eyeballs. Judgments made by successive bipartisan panels of judges suggested a consensus.
The Brod runoff bill called for a new election if the margin was less than one-eighth of 1 percent — which would have been a margin of about 2,300 votes in Coleman-Franken. The Citizens Jury considered the idea of a runoff and rejected it on a close vote.
THE UNENDING FIGHT FOR VOTES
Election law is written by elected officials. There are no noncontroversial election-law changes. Debate over how we vote is continuous, and Coleman vs. Franken has now become part of it.
Conservatives tend to worry about fraud and the security of our voting process and are likely to support requirements that voters present a picture ID at the polls.
Liberals tend to worry about removing barriers and are more likely to support such measures as "early voting," which allows voters to cast ballots in central polling places weeks before Election Day.
A conservative group called the Minnesota Majority has been critical of Ritchie's office because computerized registration databases do not match voter lists and contained many names of ineligible voters. They also note that thousands of registration cards are returned each year because no one lives at the stated address. They argue for requiring voters to produce a picture ID and against Minnesota's same-day registration law.
Sen. Katie Sieben, the Democrat who sponsored the vetoed bill in the Senate, said she draws the opposite conclusion from Coleman-Franken. Because more and more people aren't able to vote on Election Day, she wants to push for early voting so these people can cast a ballot securely, using a voting machine, probably at their county or city offices.
Pawlenty vetoed a bill that would have fixed the IRAB problem because it had no Republican votes. It had no Republican votes because Democratic-Farmer-Labor legislators wouldn't accept a picture ID amendment. The two sides are warily approaching each other during the offseason to see what they can agree on.
But let us remember the Florida rule — every "reform" can create new problems.
For example: The picture ID bill introduced in the Minnesota House by Rep. Tom Emmer, R-Delano, provides for voters without ID to cast "provisional" ballots and prove their identity later. Imagine how the lawyers in Coleman-Franken would have swarmed around those uncounted provisional voters and how hotly contested each "proof" of identity would be.
MY TWO CENTS
There are some consensus fixes that could help iron out specific problems such as absentee voting. Many of these were in the vetoed bill and are likely to reappear. They would make it easier for voters to fill out absentee applications and easier for election officials to decide whether to accept them.
The one-half of 1 percent margin to trigger an automatic hand recount — 14,500 votes in this race — is likely to be cut in half and could be lowered further. An earlier primary (ours is now in September) seems to be a likely byproduct of Coleman-Franken, and military officials are encouraging states to move primaries up so general-election ballots can be mailed to troops on time.
But there's still that "unofficial" vote total. In super-close races, once all precincts have reported, further changes always raise suspicion. Transparency is a tried-and-true solution. Could the secretary of state request and publish reasons for such changes?
There are bigger changes — less likely to happen — that would shorten the time frame and deal with the empty-seat problem.
The idea of compressing the administrative role of the canvassing board and the legal role of the contest panel into a single step could lead to a much earlier decision and one that takes into account matters of law as well as the administrative details of the recount.
That could strengthen the case for seating the certified winner even if the opponent appeals, similar to the procedure in Washington state. That would mean the seat would be empty for a shorter period of time, or perhaps not at all.
It also would mean the healing benefit that time provided us would be gone; that lawyers would have to make their case quickly, perhaps before all facts are known; and that Minnesota would have to commit to the possibility that Senator A would serve for six months and then be replaced by Senator B.
Under any system, the worst case will happen and the coin will land on its side. Subjective judgment will be required. We will need a decision-making process with integrity.
Clear law and good judging saved us. Whatever path it takes to fix its elections and recounts, Minnesota needs to preserve the integrity and independence of its judiciary. Minnesota uses a merit-selection process to fill district court vacancies, and governors tend to follow this rule in filling appellate vacancies. While judges do run for re-election, the partisan endorsements and big-money advertising that have occurred in judicial races in other states have not taken root here.
Imagine how we would have felt if Supreme Court Chief Justice Eric Magnuson, a leader of the canvassing board's recount discussions, had just come off a highly partisan election.
And there is still the wacky idea I started off with — that we should consider whether a recount and court battle, as fair as it was, is the best solution for super-close races.
Let's remember: This is a 46-year storm. The last such contested recount of this magnitude in Minnesota was the gubernatorial battle of 1962. While there have been many recounts in close races for lesser offices, a once-every-other-generation problem does not call for ripping the system apart.
It does call, however, for a new way of dealing with electoral emergencies.
"Let's go find the votes,'' Franken lawyer Elias told an associate in the days after the election. He found them fair and square. The recount and court battles that awarded the seat to Franken were also fair, and he is the legitimate U.S. senator.
But winning in the courts is far less satisfying in a democracy than winning at the ballot box. With all its faults, a tie-breaking runoff would settle super-close races in a way everyone can understand.
That seems like something smart Minnesota minds could figure out, in our meandering, thoughtful way, in the next 46 years.
"The bottom line is, as much as it pains me to say it, we probably did this as well as it could be done,'' said Fritz Knaak, a Coleman attorney who fought the recount battle from the beginning until his man lost. "There's no crying need, coming from all of this, for massive reform — unless (the reform) is a runoff.''
That's where I come down. Yes. It was fun while it lasted. We did our best. And no — let's not do it again.