17 January 2009

Minnesota (Not) Nice, part 4

Michael Stokes Paulsen, a professor of law at the University of St. Thomas in St Paul, Mn and a former associate dean of the U of M Law School, makes a legal case that builds on the facts I have repeated earlier here and here and here:

[A]s matters stand now, the Minnesota recount is a legal train wreck. The result, a narrow Franken lead, is plainly invalid. Just as in Bush v. Gore, the recount has involved "unequal evaluation of ballots in several respect" and failed to provide "minimal procedural safeguards" of equal treatment of all ballots... The different treatment makes the results not only unreliable (and suspicious), but unconstitutional...

This means two things: First, the process must conform to Minnesota election law. Second, it must conform to Bush v. Gore. Whatever standards Minnesota uses must be applied uniformly, consistently, and under clear standards not admitting of local variation. Discrepancies between machine counts and hand recounts, and between numbers of recorded votes and signed-in voters, however resolved, must be resolved the same way throughout the state.

The standards for evaluating rejected absentee ballots likewise must be uniform, with decisions made according to legal standards, not by partisan campaigns. If the Minnesota Supreme Court fails to assure these things, the matter could go right up to the U.S. Supreme Court.

And what if there is no reliable way to determine in a recount who won, consistent with Bush v. Gore's requirements?

The Constitution's answer is a do-over.

And in the meantime, if the legislature refuses to go along, Pawlenty could appoint a temporary
Senator, say, Norm Coleman, to the seat...

It would not surprise me if the people of Minnesota have in fact elected Mr Franken. These are, after all, the same people who at least nominally are Viking's fans, so their collective taste is certainly impeachable. But Franken needs to have won fair and square, and it is incumbent on the courts, at this point, to make sure whoever gets the seat did.

Note: over the last few weeks, Senate Majority Leader Harry Ried has said that there were two men who would never sit in the Senate: Rod Blagojevich's appointee, and Norm Coleman. Given what happened with Roland Burris, I think the odds are at least 50-50 for Coleman.

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