Minnesota Supreme Court's absentee-ballot ruling: An analysis
Dec 18th, 2008 by Mark Cohen
The Minnesota Supreme Court’s ruling on the absentee-ballot issue takes Minnesota nice to a new extreme. Rejected absentee ballots will be counted only if the county canvassing boards and both candidates all agree that the ballot was wrongfully rejected.
Now I may be going way out on a limb here, but in an election where a handful of votes separate the two candidates, don’t the candidates have an incentive to try to game the system? (For example, I am guessing Norm Coleman’s people won’t exactly be quick to agree absentee ballots were wrongfully rejected when they are from counties that are DFL strongholds, and ditto for Al Franken’s folks when the ballot is from a GOP stronghold.)
I am perplexed how you could leave something like this to the discretion of the candidates. It’s a result that Justice Alan Page rightly labels “perverse” in a well-worded dissent. Page also cites to a quote attributed to Josef Stalin to make his point: “I consider it completely unimportant who will vote … or how; but what is extraordinarily important is this … who will count the votes, and how.” Page scathingly says the majority’s ruling “gives credence” to this disturbing proposition.
Page’s point is well-taken. Otherwise valid absentee votes will now be discounted as they fall victim to the political gamesmanship of the candidates and their proxies angling for an advantage.
In his own concurrence and dissent, Justice Paul Anderson also takes the majority to task: “I conclude that the majority’s order is flawed because it misreads Minnesota’s election laws, is internally inconsistent, and has essentially inserted this court into a political thicket based on a premise that lacks a basis under the law.”
Anderson is right. As the justice points out, the majority opinion essentially allows county canvassing boards to correct adding errors, but nothing else — not without the consent of the candidates anyway. If a ballot was obviously wrongfully rejected by an election judge, the majority opinion gives the candidates the power to disenfranchise a voter merely by refusing to agree to count the vote.
I very much respect our Supreme Court and applaud its efforts to encourage civility. However, it’s just not realistic to expect the two candidates who have just engaged in the nastiest Senate campaigns in Minnesota history to make nice and to calmly and rationally make the decisions that will determine which of them gets the Senate seat. In political races, there are no prizes for being Mr. Congeniality.
