Posted: January 7, 2009

Who Will Judge the Minnesota Contest?

Now is the critical moment to assure that the outcome ends up accepted by both sides as fair, by picking the three members of the contest court so that collectively these judges are perceived as evenly balanced and thus an impartial tribunal

Nine weeks ago, Minnesotans awoke to learn that just a few hundred votes, out of about 3 million cast, separated the two leading candidates for their U.S. Senate seat.  The politically savvy citizens of the state—and there are many of them—knew then that there likely would be a judicial contest of election result.  To be sure, there was also the possibility of an administrative recount as a prelude to the judicial contest, but it was unlikely that a recount would preclude the necessity of a contest. 

The recount is now complete, and indeed the contest has been filed.  It may be hard to think of the recount, as thorough and lengthy as it was, as a prelude to the main event, but that’s the reality of the situation.  The contest court has the authority to revisit everything that the recount board did, while the recount board made clear that it lacked the power to resolve two of the main issues that have emerged these past nine weeks: (1) the problem of wrongly rejected absentee ballots; and (2) allegations of erroneous double-counting during the recount of ballots that were duplicated because the machines could not read them. There were strategic efforts by each campaign at various points to get one or both of these issues resolved during the recount process, but those efforts were unsuccessful—even with respect to the rejected absentee ballots, for which an incomplete process was developed to get some of them included within the recount totals. 

I have no view of the merits of the contest at this point.  It would be premature to have one without consideration of the evidence underlying the claims that are raised, and I for one don’t feel I have a good sense of what evidence will be presented to the contest court concerning either of the two issues identified above, or others that may be pressed.  (Of course, even if there is strong evidence to alter the margin of victory as it now stands, at 225 votes, there must be evidence to erase all of that margin for the contest to be ultimately successful.  Adding 650 previously uncounted absentee ballots won’t necessarily do that, unless they break overwhelmingly in favor of the contestant.  But the point here is that a lot of issues have been included in the Notice of Contest filed yesterday, and if enough of them are meritorious—and there are not enough meritorious counter-adjustments from the other side, as there may well be—then the ultimate outcome conceivably could be opposite from what the recount determined.)

But I do have a strong view about the process by which the contest is conducted.  It’s a view I expressed on November 18 in an op-ed published in the Minneapolis Star-Tribune, reprinted with permission as a Free & Fair column.  It’s also a view that I expressed today as part of a “Topic A” opinion forum in the Washington Post. 

The view is that process should be fair to both sides, and perceived by both sides and their supporters as fair.  That the best way to achieve this goal is to have the three-judge court that will adjudicate the contest be structurally evenhanded between the two sides, which requires one judge whose political background is perceived to be aligned with the party of each campaign and the third judge to be perceived as neutral, in neither camp.  There are different methods of appointing the three judges to get that kind of structural evenhandedness, but the best method is the one that Minnesota already used for the contest of its 1962 gubernatorial election: have the candidates themselves, by agreement, select the three judges.  If the two candidates can’t or won’t do that, the second-best method is to have the two judges whose backgrounds are perceived as aligned with each side pick the third judge to join them on the panel.  (This second-best method is the one we used for the McCain v. Obama simulation, and it worked splendidly.) 

Now is the critical moment in the process for building in this kind of structural fairness.  This morning’s Minneapolis Star Tribune reports that the appointment of the three-judge panel will be made, not by Chief Justice Magnuson (who has recused himself because of his service on the canvassing board), but by senior Associate Justice Alan Page.  Let’s hope no one is in a position to say that the outcome of the contest was affected because one Justice rather than another exercised this appointing authority.  

As I reflect on what I wrote in the November 18 op-ed for the Star Tribune, as the recount was just beginning, I must add that I’ve been impressed with the fair-mindedness of the State Canvassing Board even though its structure was not guaranteed to be inherently evenhanded.  It did have representation from different political backgrounds: Secretary of State Ritchie was an elected Democrat (“DFLer,” to be precise, as Minnesota calls its Democrats), and its two supreme court Justices were Republican appointees; all of its members conducted themselves in a way that showed that their effort was to count votes accurately, not favor a particular candidate.  The board’s conduct demonstrates that—at least in a state with the kind of “good government” culture that Minnesota has—a fair process can be achieved even without a guarantee of structural neutrality. 

But there is no reason for the state to make it harder on itself to maintain the necessary appearance of procedural impartiality, now that the contest has commenced.  The contest necessarily will be more intense even than the recount was: the trial will be focused on what matters most, as ancillary issues involving uncontroversial ballots will be pushed to the side; the factual inquiry will be conducted under the crucible of cross-examination, with sworn testimony. 

If there are two Democrats on the three-judge panel, or two Republicans, it might still be possible for its eventual decision to be accepted by both sides as fair—especially if the panel is unanimous and rules against the candidate with the same party affiliation as the majority of its members.  But even good-government Minnesota should avoid the risk that it won’t turn out this way if the contest court is structurally uneven.  It will look ugly to Minnesotans, as well as the rest of the nation, if a court with a 2-1 party membership votes 2-1 in favor of the candidate whose party aligns with its own majority. 

Thus, Justice Page should do whatever he can to get a court with one Democrat, one Republican, and the third judge whom the public perceives as genuinely neutral.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile