The 3-2 ruling, issued at approximately 5:30 PM this evening, orders the following:
1. The counties are prohibited from sorting through or counting any rejected absentee ballots on their own, or under the recommendations of the state's Canvassing Board;
2. Instead, the two candidates, the Secretary of State, and the county auditors and canvassing boards should implement a process for identifying and counting wrongfully rejected absentee ballots. But -- and here's the kicker -- both of the candidates and the local elections officials must mutually agree that any given absentee ballot has been rejected in error. If such a consensus emerges about a particular ballot, it will be opened, counted, and the revised results will be forwarded to the state's Canvassing Board.
The Court further requires that this process be completed by 4 PM on December 31st. Nothing in the ruling, however, would appear to preclude either campaign from challenging the results of the election at a later date.
The process established by the Supreme Court is likely to be contentious and cumbersome. The sheer number of parties it involves in the process, when coupled with the lack of guidance it provides to them, creates an environment in which fatigue and partisanship are likely to prevail over Minnesota Nice. The most burdensome part of the process, of course, is the requirement that each individual ballot must be mutually agreed upon to have been rejected in error before it is opened and counted.
Nevertheless, while there are obvious incentives for gamesmanship in the process, I would suggest that the campaigns are at substantial risk if they try and play it too cutely in negotiating the fate of individual ballots. For one thing, the Court's ruling does contain some weak language suggesting that if the campaigns misbehave during the absentee ballot process, this may be held prejudicially against them in the (likely) event of an election contest.
Perhaps more importantly, however, there appears to be something of a trap waiting or a campaign that applies inconsistent standards in its acceptance of absentee ballots from county to county and precinct to precinct.
The trap is as follows. The campaigns can't know, in theory, which candidate a ballot might be counted for when they are negotiating whether or not it is a legitimate ballot. This is because absentee ballots are sealed. (I caveat this with "in theory, because the campaigns will undoubtedly be able to cross-check some fraction of the absentee ballots against their voter lists). What the campaigns can know, however, is which candidate is more likely to win that ballot based on the demographics of the precinct. In a heavily black precinct in Minneapolis, Franken would presumably be more inclined to open the ballot, and the Coleman campaign less so. Conversely, in a wealthy suburb of Rochester, the Coleman campaign might be more inclined to take the gamble and open the magic envelope.
The problem, it seems to me, is that if the candidates apply inconsistent standards from county to county and precinct to precinct, they set up an exceptionally strong Equal Protection argument for their opponent. In Bush v Gore -- a ruling cited extensively in the Coleman campaign's petition to Minnesota's court this week, the U.S. Supreme Court held as follows:
There is no difference between the two sides of the present controversy on these basic propositions. Respondents say that the very purpose of vindicating the right to vote justifies the recount procedures now at issue. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.Emphasis is mine. Basically, if a voter cannot have some reasonable assurance that her ballot would be treated uniformly from one county to the next, the process violates Equal Protection and is probably unconstitutional. Thus, if a campaign attempted to preclude a voter from being treated the same in Dakota County as she might be in Hennepin County, it could create exceptionally strong rounds for an election contest from its opponent. Such differential treatment would presumably be easy to demonstrate, as Minnesota has fairly simple and unambiguous rules for the counting of absentee ballots, and the same typologies of borderline cases are likely to arise from one county to the next.
Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to count them. In some cases a piece of the card -- a chad -- is hanging, say by two corners. In other cases there is no separation at all, just an indentation.
The Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right. Florida's basic command for the count of legally cast votes is to consider the "intent of the voter." Gore v. Harris, ___ So. 2d, at ___ (slip op., at 39). This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary.
The law does not refrain from searching for the intent of the actor in a multitude of circumstances; and in some cases the general command to ascertain intent is not susceptible to much further refinement. In this instance, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered as a vote during the machine count. The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment.
The want of those rules here has led to unequal evaluation of ballots in various respects. See Gore v. Harris, ___ So. 2d, at ___ (slip op., at 51) (Wells, J., dissenting) ("Should a county canvassing board count or not count a 'dimpled chad' where the voter is able to successfully dislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree"). As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.
The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.
Each campaign, then, is under some compulsion to develop and apply a consistent statewide standard. The Franken campaign, believing that counting more absentee ballots is generally to its advantage, will undoubtedly argue for a more liberal standard, and the Coleman campaign for a more conservative one. Since the Coleman campaign essentially has veto power over the matter, the more conservative standard will probably prevail.
What the Coleman campaign probably cannot get away with, however, is failing to establish any reasonable standards for the counting of the absentee ballots, or for applying such standards capriciously from county to county. The more arbitrarily the Coleman campaign behaves, the more it runs the risk of facing -- and losing -- an election challenge. The Nash equilibrium here, then, is probably a conservative but in fact fairly consistent standard for counting the absentee ballots. Still, it's liable to be a bumpy ride along the way.