Minnesota Lawyer Blog

The historic recount in the U.S. Senate race between Al Franken and Norm Coleman is under way in St. Paul, and officials at the 100 recount sites are taking the process seriously: In Stearns County, the opening of a sealed box of ballots was shown live on the St. Cloud Times’ web site.

Meanwhile at our sister publication, Politics in Minnesota, it’s reported that Franken’s legal team too issue with former state attorney general Ken Raschke’s opinion on whether Minnesota law allows the review of rejected absentee ballots. Raschke’s thoughts were solicited by Secretary of State Mark Ritchie.

Among other things, Rashcke points out that Minnesota Stat. 204C.35 says that “only the ballots cast in the election and the summary statements certified by the election judges may be considered in the recount process.”

Attorneys for Franken’s campaign countered that Raschke’s opinion “incorrectly leaves the distinct impression that the recount cannot include the review of and the counting any absentee ballot wrongly rejected during the election judges’ initial counting of the ballots.”

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 ...

As has been reported elsewhere, the recount of the Senate race between Norm Coleman and Al Franken is only the second recount of statewide election results in Minnesota since the 1962 gubernatorial race. The other recount was, of course, just a couple of months ago -- and that came in a judicial election.

As loyal readers of this blog will no doubt recall, Supreme Court Justice Lorie Skjerven Gildea faced three challengers in the primary -- public defender Richard Gallo, Minneapolis attorney Jill Clark and Hennepin County District Court Judge Deborah Hedlund. In judicial races, which are nonpartisan, the top two vote-getters earn a place on the November ballot. Gildea finished on top with about 54 percent of the vote; Gallo was the bottom vote-getter with about 11 percent. That left Clark and Hedlund to vie for the second spot on the general election ballot. Statistically, they were both fairly evenly split, with both getting between 17 and 18 percent of the vote. Hedlund had an edge in the unofficial tally -- 1,369 votes of more than 316,000 cast in the race. Because state law requires a recount if an election is decided by less than a .5 percent margin, an automatic recount was triggered. Clark narrowed the margin by just seven votes in the recount, not nearly enough to displace Hedlund as the number two vote-getter. Hedlund went on to the general election, where she lost her challenge against Gildea.

The Coleman/ Franken recount -- which hasn’t even started yet -- has already proved to be a lot less smooth. Last Wednesday morning -- the day after the election -- the unofficial tally had Coleman ahead by 725 votes out of more than 2.8 million cast. However, as counties double check and verify their reporting, Coleman’s lead has shrunk to just 204 votes.

The Coleman/ Franken recount will be much more controversial than the judicial race recount for many reasons, including:

• The margin is much closer -- 204 votes in a race where each candidate has about 1.21 million votes vs. 1,369 votes in a race where the candidates each had between 55,000 and 57,000 votes.
• Primary races tend to be not as closely watched as general election races, since the “winners” only go onto the November ballot rather than into public office.
• Judicial races garner much less attention than presidential, congressional or even state legislative races. We have chronicled on this blog the many ways that this fact is unfortunate, but that doesn't stop it from being true.
• Senate races, unlike judicial races, are partisan. This makes a difference for many reasons. For example, in a nonpartisan race, you don’t have to worry as much that a voting issue in a GOP or DFL stronghold will affect the candidates disproportionately; you also don’t have to worry about politics affecting vote counters’ decisions about which votes to count (and not count).

I could go on, but I think you get the general gist. No matter what happens with this recount (and I have every confidence that Secretary of State Mark Ritchie will do all he can to make it as clean as possible), the race will provide the political blogosphere conspiracy-theory fodder for many years to come.

Conspiracy theories aside, our imperfect system of paper ballots and scanning technology with recounts by hand is just not set up well for elections this close. Even an error of just one vote tabulating every 10,000 recounted will yield a difference of 240 votes when counters are sifting through 2.4 million ballots. Are you confident you could work your way through 10,000 ballots without making a single mistake? I sometimes have difficulty double checking my change when I purchase something. Yet I don’t think many of us at this point want to shift our elections completely over to computers. All it would take would be one really good hacker or one really bad virus to make Joe the Plumber the president of the United States. No thanks!

I think for the time being we are stuck with our imperfect system. To paraphrase Winston Churchill, it’s the worst system in existence, except for all the other systems.

Senator Norm Coleman’s speech accepting the GOP’s nomination last Friday contained quotes from and allusions to the usual politician’s lineup of historical heroes, including Winston Churchill, Abraham Lincoln (twice!) and Benjamin Franklin. There was even a reference to an unconventional hero or two, such as Julius Irving (“Dr. J”). However, one named kept coming more than the rest -- Charles Lindbergh.

I counted four references to the famed Minnesota aviator. Coleman presumably wanted to make sure to include references to a local hero in his speech. Lindbergh, a farm boy hailing from Little Falls, Minn., apparently filled the bill. The only problem is that this local hero has a somewhat checkered past. Lindbergh’s aviation achievements -- including piloting the first nonstop solo transatlantic flight -- are beyond dispute. He was an air mail pioneer and an inventor. However, he also later became a public spokesperson for a controversial isolationist movement called America First that opposed the United States’ entry into World War II. In 1938, Lindbergh visited Nazi Germany and accepted a medal from Hermann Goring, a decision that would later come back to haunt him. A proponent of eugenics who was very outspoken in his views, Lindbergh was believed by some to be an anti-Semite (a charge he vehemently denied). Certainly some of his statements and writings on the subject of race would not pass muster today.

I don’t suspect that Coleman was thinking of any the darker stuff when he kept bringing up Lucky Lindy. Still, I couldn’t help feeling a wee bit uncomfortable when, in an otherwise nice moment, he referred to the 6-year-old cancer victim he brought up to share the spotlight with him as a “young Lindbergh.” But human beings are complex creatures, while heroes need be very simple ones. Lindbergh had a great spirit of adventure that is worthy of emulation. Let’s just leave it at that.

At what point and under what terms is a public official entitled to express an opinion about a political matter unrelated to his office? That's the issue in a minor dust-up between Hennepin County Attorney Mike Freeman and former federal prosecutors Tom Heffelfinger and Doug Kelley.

Freeman remarked in a newspaper interview last Saturday that the controversy over Al Franken's failure to properly file tax returns in California was a distraction from the real issues in the campaign for Senate. (Freeman has said previously that he was supporting Franken since Mike Ciresi was out of the race.)

On Tuesday, Heffelfinger and Kelley chastised Freeman in a letter, saying that he shouldn't have commented on the Franken situation without all the facts. Freeman countered that their letter was nothing more than a subtle show of support for Franken opponent Norm Coleman.

Freeman never claimed that his comments reflected the view of the county or his office -- he was asked for his opinion and gave it. Heffelfinger and Kelley's beef is that he didn't go out of his way to make it crystal clear that he was offering a personal opinion.

It seems Freeman's primary sin was being the only source quoted in the Saturday article about Franken who wasn't a full-time political consultant or mouthpiece of some kind. In that sense, it wasn't it courageous, rather than irresponsible, for him to express an opinion on the matter?

Do we really want to muzzle the opinions of officials because their comments might imply that those opinions might be shared by the official's colleagues?

Lost this week in the hubbub over the retirement of Minnesota Supreme Court Chief Justice Russell Anderson and the ongoing hassle at the Attorney General’s office was the news that Mike Ciresi was dropping out of the Minnesota U.S. Senate race.

Actually, the way the Ciresi story got buried was a bit symbolic of his campaign in general. Despite his pedigree as a go-getter and an aggressive champion of consumer rights, Ciresi never quite inspired the table talk of his primary opponents, incumbent Norm Coleman, newcomer Al Franken, or even dark-horse candidate Jack Nelson-Pallmeyer.

Franken, for all his inexperience, has shown surprising aptitude when it comes to fundraising and engendering grass-roots support. In fact, as Minnesota Lawyer reported last year, a goodly portion of Ciresi’s individual campaign contributions came from within his own firm, Robins, Kaplan, Miller & Ciresi -- and that was before he dipped into his own pocket to lend his campaign $2 million.

Maybe Ciresi’s second failed attempt to storm the gates of Congress is a sign from the gods that his talents are better suited to the courtroom after all. Now that he’s no longer even in a position to play spoiler, it will be interesting to see if he throws his support behind Franken.