The State Canvassing Board of Minnesota met today to “certify” the election results from earlier this month, and to affirm that the vote was within one half of one percent in the gubernatorial race between Democratic Farm Labor candidate Mark Dayton and Republican Tom Emmer.
Part of that process involves a discussion, which as of this writing is still ongoing, about the procedure for the required recount. There are a number of issues involved, and I will not bore you with all of them. But I will discuss one, because it seems to me that the outcome of today’s canvassing board meeting may guarantee that there will be a successful state supreme court challenge to the Minnesota Gubernatorial recount, presumably on behalf of whomever is determined by the recount to have lost.
This has to do with the distinction between three kinds of ballots: Those that are not challenged, those that are reasonably challenged for some good reason, and a new, third category that sprang into existence just now during the canvassing board meeting: Officially Frivolous Challenges.
Formerly, a “frivolous” challenge was a normal run of the mill challenge made, in the Franken-Coleman recount, that was later identified as frivolous because, well, they looked at a pile of challenged ballots and a whole bunch of the challenges were bogus. Now, “frivolous” will be a category determined as follows: A recount observer representing one candidate or another challenges a ballot. Then, the official overseeing the counting of the ballot at that particular table … a volunteer, a county employee, whatever, but with some training … says “No, that’s a bogus.” The ballot then goes in the “frivolous” pile and is forwarded as such to the canvassing board.
The canvassing board would then review the “challenged” ballots that were not determined to be “frivolous” and ignore the “frivolous” ballots. Well, they may look at them, but most likely they will summarily ignore them, presuming that their classification of bogus challenges is valid. Then, the canvassing board will determine who won the race based on recount by election officials, plus or minus challenges that the board accepts as valid.
Then, the losing side will bring this to the state supreme court and make the perfectly reasonable argument that the “frivolous” ballots have to be looked at. The argument, specifically, will be that only the canvassing board can really tell the frivolity of a ballot. Potential inconsistencies among the various election officials across the state almost guarantees the absence of equal protection of all parties. Then, the canvassing board (or somebody, quite possibly a special administrative panel of the court consisting mostly of canvassing board members) will be ordered by the court to review the “frivolous ballots” (throwing most or all of them out, we assume).
Had the “frivolous ballots” been returned to the piles of recounted ballots without being isolated or specially marked, there would still be a successful court challenge, but one that would be costly and time consuming to respond to. The system they’ve decided on will allow a challenge to be addressed fairly efficiently. However, if all challenged ballots were simply handle the same way, there would be no State Supreme court step. One of the problems with adding the State Supreme Court challenge into the process is this: That court follows no temporal regulation. They can decide to meet in a couple of weeks, hear arguments for a couple of weeks, and then, and then they are not compelled to make a decision right away, or to say when they will make a decision. A supreme court step that involves actual hearing of arguments and the “taking up” of the case can add months, and will certainly add at least weeks, to the process. Dealing with a few thousand challenges that turn out to be frivolous would take four or five working days by the canvassing board.
Another question still being discussed is how the ongoing counts will be included or not included on a daily summary report from each county counting. This is important. If the frivolous count is included in any report, this will cause there to be more frivolous challenges. One of the reasons there were so many frivolous challenges in 2008 is said to be that they served (the Coleman campaign in that case) as a fund-raising tool.
Kudos to Bert Black from the Secretary of State’s office for writing up the new regulation on how to erect and manage the new Officially Frivolous (my term not theirs) category, doomed as it may be.
The canvassing board is in recess for a couple of hours, so I’m off to the gym.
Added: Jay Weiner on the canvassing board activities. Hat tip Ana: