The three-judge panel reviewing the U.S. Senate race in Minnesota is plowing through more than 4700 absentee ballots to determine which, if any, were improperly discarded and should be counted. But even this might not end the contest.
Hans von Spakovsky, formerly of the Justice Department’s Voting Rights Section and now a visiting scholar at the Heritage Foundation, writes that there is a Bush. v. Gore problem:
Regrettably, we have an entire series of actions in the Minnesota recount that fit squarely within the unequal treatment problems that ensnared Florida officials in 2000 and led directly to the Supreme Court’s decision in Bush v. Gore. These problems range from allowing double votes in some counties to allowing votes that violated state law.
The disparate treatment of votes was clearly present in the Minnesota recount. Because of the failure of local election officials to properly mark and segregate the original, defective ballots that could not be counted by precinct computer scanners and the duplicate ballots created as substitutes, both the original and duplicate ballots were hand-counted in a number of counties. Thus, the value placed on the ballots of some persons was greater than the value placed on ballots of other Minnesota voters, in violation of the Equal Protection Clause.
The fact that the total vote count from one county was based on the election-day electronic total and apparently included nonexistent ballots, while the vote totals from other counties were based on the hand count, is another example of the application of a disparate standard.
After the Minnesota state court proceeding, the losing party could very well head to federal court. But then it gets messy. It seems that no one much bothered to segregate the original and duplicate ballots. If they can’t do that, then, according to von Spakovsky, “it will not be possible for Minnesota to conduct a recount that values every person’s vote equally.” What then?
Under such circumstances, the state would be forced to stand by the original electronic count from election day along with (1) any corrections in the absentee ballot count (which may properly be considered under Minnesota law at the “contest” phase) and (2) new and consistent determinations of voter intent on defective ballots–both as determined by the court in full compliance with Minnesota law. Otherwise, the only constitutionally acceptable remedy will be to conduct a new, special election for the vacancy in the position of the United States Senator from Minnesota.
Another election? Yup.
