Minnesota Lawyer Blog

I have a modest proposal for resolving whether Norm Coleman or Al Franken should represent our fair state in the U.S. Senate for the next six years -- a coin toss.

Let me explain.

First of all, all of this back and forth about the relevance of the DFL ties of Secretary of State Mark Ritchie to his role in the recount misses the point. Even if Ritchie were they type of old-style politician to try to bend the entire process to his party's will -- and I don't think he is -- the other four members of the Canvassing Board serve as a sufficient check to prevent that. I cannot imagine Supreme Court Chief Justice Eric Magnuson, Supreme Court Justice G. Barry Anderson and Ramsey District Court Judges Kathleen Gearin and Ed Cleary would stand idly by and allow such a subversion of the process to happen. The two high court justices are both Republican appointees who have done well rising above politics in their judicial roles; Cleary used to head the office charged with overseeing the ethics of all the state's lawyers. If those are supposed to be the co-conspirators that Ritchie hand selected to lead a DFL coup of the democratic process, he ought to be upbraided for his incompetent team-selection skills rather than for his Machiavellian maneuvers. In reality, I think the secretary of state is committed to running a clean process. While there is certainly some subjectivity in declaring which debatable votes should count and which ones shouldn't -- and it's impossible to predict at this point how those calls will affect the final result -- I am reasonably confident at this point that those decisions won't be made on a partisan basis.

An army of lawyers and lay observers will be watching the actual ballot recounts, mitigating the chances for any serious hanky panky at that level.

That leaves human error. Even if the hand recount of the 2.8 million ballots is 99.9 percent accurate, that means that 2,800 votes will be inaccurately tallied. When the candidates are only separated by a paltry 200 votes or so, the odds that we will send the right man to the Senate (i.e. the candidate who would be declared the winner in a completely error-free count) are only marginally better than the result that would be generated by random chance. Which gets me to my point. A coin toss would be a lot cheaper, swifter and more certain than any recount could ever be. So let's do it: Heads Coleman, tails Franken ...

This proposal is, of course, being made tongue in cheek. A recount is required by law in this situation -- and is needed to determine whether there were any glitches or irregularities in the election process that would demonstrate that there is a more statistically significant margin of votes separating Coleman and Franken. In any case, people will be presumably be more willing to accept the result of the recount because -- even if it isn't -- it at least has the appearance of not being as random as the coin toss. Whatever the recount result, we are likely to be stuck with a bevy of related litigation for some time to come.

Of course, even if we were to adopt the coin toss as our method of resolving elections this close, I am not sure we could keep the lawyers out of it. There would likely be lawsuits over who gets to do the toss, who gets heads and who gets tails and which coin to use (e.g. A penny? Sorry, Lincoln was a Republican. A dime? Sorry, FDR was a Democrat).

Perhaps we should make that a game of "rock, paper scissors" instead ...