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"The Minnesota Recount Was Unconstitutional"

nonniey

By nonniey
in The Tailgate

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nonniey

nonniey

Posted
Posted

An interesting take from a Minnesota Law Professor.

I still think that Franken won (but also believed shenanigans on the part of his campaign padded the lead somewhat).

http://online.wsj.com/article/SB123197800446483619.html

You would think people would learn. The recount in the contest between Norm Coleman and Al Franken for a seat in the U.S. Senate isn't just embarrassing. It is unconstitutional.

This is Florida 2000 all over again, but with colder weather. Like that fiasco, Minnesota's muck of a process violates the Equal Protection Clause of the U.S. Constitution. Indeed, the controlling Supreme Court decision is none other than Bush v. Gore.

Remember Florida? Local officials conducting recounts could not decide what counted as a legal vote. Hanging chads? Dimpled chads? Should "undervotes" count (where a machine failed to read an incompletely-punched card)? What about "overvotes" (where voters punched more than one hole)? Different counties used different standards; different precincts within counties were inconsistent.

By a vote of 7-2, Bush v. Gore (2000) ruled that Florida's recount violated the principle that all votes must be treated uniformly. Applying precedents dating to the 1960s, the Court found that the Equal Protection Clause meant that ballots must be treated so as to give every vote equal weight. A state may not, by "arbitrary and disparate treatment, value one person's vote over that of another." Florida's lack of standards produced "unequal evaluation of ballots in several respects." The state's supreme court "ratified this uneven treatment" and created more of its own, and was unconstitutional.

Bush v. Gore is rightly regarded as controversial -- but not because of its holding regarding the Equal Protection Clause, which commanded broad agreement among the justices. The controversy arose because of the remedy the Court chose for Florida's violation, which was to end the recount entirely. The majority thought that time was up under Florida law requiring that its results be submitted in time to be included in the Electoral College count. That aspect of Bush v. Gore commanded only five votes. Two justices thought Florida should get more time and another chance.

The problem with the remedy was that it arguably violated the same principle that led the Court to invalidate the recount: the need to treat all votes equally. It had the practical effect of awarding the election to Bush (though subsequent media counts confirmed that Bush won anyway, under any uniform standard). This has led to enduring partisan criticism of the case, some fair and some unfair.

But no matter: Bush v. Gore is the law of the land. On the question of how the Equal Protection Clause applies to state recounts, the ruling, which reflected a 7-2 majority, controls.

Minnesota is Bush v. Gore reloaded. The details differ, but not in terms of arbitrariness, lack of uniform standards, inconsistency in how local recounts were conducted and counted, and strange state court decisions.

Consider the inconsistencies: One county "found" 100 new votes for Mr. Franken, due to an asserted clerical error. Decision? Add them. Ramsey County (St. Paul) ended up with 177 more votes than were recorded election day. Decision? Count them. Hennepin County (Minneapolis, where I voted -- once, to my knowledge) came up with 133 fewer votes than were recorded by the machines. Decision? Go with the machines' tally. All told, the recount in 25 precincts ended up producing more votes than voters who signed in that day........

Clik the link for the full article.

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Thiebear

Thiebear

Posted
Posted

Every vote should count that wasn't "found" in a car trunk or the chain of evidence broken for a week.

I think they should vote again myself.

Edit:

Ramsey County (St. Paul) ended up with 177 more votes than were recorded election day.

This one should be hunted down and the person responsible if intentional should be put in jail for 5 years.

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Predicto

Predicto

Posted
Posted

Strangely enough, the guy at FiveThirtyEight.com seems to think that the Wall Street Journal opinion guys are lying about what is happening in Minnesota.

http://www.fivethirtyeight.com/2009/01/did-wall-street-jorunal-fire-their-fact.html

I will not claim that the FiveThirtyEight.com guy is always right, but as far as I can tell, he has much less of an axe to grind than the WSJ editorial page.

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Duckus

Duckus

Posted
Posted
Strangely enough, the guy at FiveThirtyEight.com seems to think that the Wall Street Journal opinion guys are lying about what is happening in Minnesota.

http://www.fivethirtyeight.com/2009/01/did-wall-street-jorunal-fire-their-fact.html

I will not claim that the FiveThirtyEight.com guy is always right, but as far as I can tell, he has much less of an axe to grind than the WSJ editorial page.

I love FiveThirtyEight.com. I would check his site 50 times a day during the election. They way he breaks down polls is awesome.

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Larry

Larry

Posted
Posted

Um, I seem to recall at the time, that the USSC decision actually opened up with language to the effect that it's ruling cannot be used or cited as precedent for any later case whatsoever, that this ruling was a special, one time only, decision.

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aREDSKIN

aREDSKIN

Posted
Posted
It's amazing how many votes Franken keeps finding. Almost like they appeared out of nowhere. He's a crook and a prick. Nice job MN. You really couldn't find a better person to represent the Democratic party in the Senate?

Pretty much on par for the likes of dems wouldn't you say? History is ripe with examples of this type of behavior by Dems.

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Kilmer17

Kilmer17

Posted
Posted
Um, I seem to recall at the time, that the USSC decision actually opened up with language to the effect that it's ruling cannot be used or cited as precedent for any later case whatsoever, that this ruling was a special, one time only, decision.

Yep. But Im not sure how binding that is. Or if it's ever been done before and ignored. IE, we may have a precedent to ignore a decision stating that you cant use it as a precedent.

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DjTj

DjTj

Posted
Posted
Yep. But Im not sure how binding that is. Or if it's ever been done before and ignored. IE, we may have a precedent to ignore a decision stating that you cant use it as a precedent.
The Sixth Circuit has used Bush v. Gore a few times. The Supreme Court itself definitely likes to pretend it never happened. I don't think the SCOTUS is going to even consider citing it until every Justice who was on the Court in 2000 retires ... or maybe when Scalia and Thomas are the only ones left.

http://www.nytimes.com/2008/12/23/us/23bar.html?_r=1&hp

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Tulane Skins Fan

Tulane Skins Fan

Posted
Posted
When the Supreme Court talks, future courts use it as precedent. It is inevitable.
The Sixth Circuit has used Bush v. Gore a few times. The Supreme Court itself definitely likes to pretend it never happened. I don't think the SCOTUS is going to even consider citing it until every Justice who was on the Court in 2000 retires ... or maybe when Scalia and Thomas are the only ones left.

http://www.nytimes.com/2008/12/23/us/23bar.html?_r=1&hp

That's all true, but if you're a constitutional law professor, you are being disingenuous when you assert that Bush v. Gore is the opinion which demonstrates how this is unconstitutional.

BTW, Bush v. Gore was a terrible opinion.

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