The Free Press, Mankato, MN

Editorials

July 2, 2009

Our View: Election law flawed, followed

Political partisans will likely be screeching about Minnesota election law, officials or “biased” judges on the Minnesota Supreme Court after it ruled 5-0 in favor of upholding the trial courts decision that Al Franken won the U.S. Senate election.

But if those partisans read the ruling they will find some revealing facts:

“No claim of fraud during the election or during the recount was made by either party,” said the court. That statement was backed up with confirmations on both sides as part of the record.

There can be legitimate criticism of some provisions of Minnesota election law.

Legal precedent in Minnesota and with the U.S. Supreme Court says it’s OK for election officials to apply slightly different levels of compliance with the rules for accepting absentee ballots. Those precedents hold as long as voters did not act on standards they perceived to be different. In any case, Coleman would’ve had to prove voters acted differently because they knew about the mixed standards. But the Coleman camp admitted it could not prove that.

The court said that standards were different among jurisdictions, but not so different that they violated the general spirit of the law. The court cited legal cases, at the state and federal level, that call for those challenging the different applications of the law by election officials show those officials had intent to defraud or prejudice the results. The Coleman camp could not prove that intent and, again, admitted as much during the course of appeals.

There was even a legal precedent in Minnesota for accepting the final tally of a precinct’s total vote instead of tally of the actual ballots. That came into play with the Minneapolis precinct where some ballots were lost.

In the end, the only way the Supreme Court could have overturned the trial court’s findings would be the existence of clear and convincing evidence that trial court had erred. There simply was no such evidence based on the nuances of election law.

So what could be changed to make the system better? The Legislature could change the law that stipulates that only physical ballots in evidence can be counted in a recount, not the taped record of the totals from voting machines. But that seems to be going in the opposite direction of making sure everyone’s vote is counted. Why should a vote not count if an official loses a ballot after it has been counted?

The Legislature could also make more strict the compliance it wants from election judges in accepting absentee ballots. The state could conduct an audit of that compliance after every election and recommend improvement if it wasn’t consistent. Those audits could then be used in a contested election case.

That presence of an audit might create more confidence among absentee voters, at the very least.

Still, the 5-0 nature of the Supreme Court ruling was significant. It suggests that while Minnesota election law has its flaws, the law was followed by those charged with implementing it. The vote count was as fair as the law.

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