Election Law @ Moritz

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Free & Fair

The Rhetoric of a "Stolen" Election

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July 1, 2009

The following is an email I sent to Rick Hasen's Election Law "listserv" when I saw his reference to the Wall Street Journal's editorial on the resolution of the U.S. Senate election in Minnesota:

I was very disappointed to see the Wall Street Journal editorialize: “Mr. Franken now goes to the Senate having effectively stolen an election.”   This provocative accusation is highly irresponsible, both (a) in terms of U.S. domestic politics and the public's understanding of its own democracy and (b) our consideration of international standards regarding the conduct of elections, brought so dramatically to the fore by Iran. 

Neither did Mr. Franken, nor did his attorneys or any of his partisans, “steal” this election, in any appropriate sense of that term.  Even taking the WSJ's underlying basis for that conclusion at face value, at most Franken did was work the system by making arguments about what disputed ballots should be counted or rejected--nothing different from what Coleman did, or for that matter Bush and Gore in 2000, or any other candidate trying to achieve a favorable resolution to a post-election dispute.

If there is any implication on the part of the WSJ that the Minnesota officials who were responsible for deciding the merits of Franken's (and Coleman's) arguments were biased in favor of Franken's position--and the WSJ is careful not to make that accusation of official impropriety explicitly--that implication is easily refuted by the record of what happened in this case.   The State Canvassing Board, which was unanimous in all of its legal rulings and essentially unanimous in virtually all of its ballot-by-ballot review of voter intent, had five members, two of which were state supreme court justices with demonstrably Republican backgrounds, including the Chief Justice.  It would be out-of-touch with the reality of the situation to suggest that the State Canvassing Board attempted to steal the election for Franken.

Likewise, the three-judge trial court was selected to achieve partisan balance: one member was a Republican appointee, another a DFLer, and third an independent (Ventura-appointee).  It, too, was unanimous in all of its rulings.  Whether or not one agrees with its rulings on the merits--in other words, whether one thinks the 3-judge panel correctly or incorrectly interpreted Minnesota or federal law--there is no basis whatsoever for thinking that its legal rulings were biased in a desire to throw the election to Franken for partisan reasons.  Moreover, had Coleman been able to identify previously rejected absentee ballots that met the 3-judge court's legal standard, the court undoubtedly would have counted them--and if there had been enough, Coleman would have prevailed according to that standard (based on the court's interpretation of the law, right or wrong).  It is incorrect for the WSJ to suggest that there would have been no way for Coleman to prevail once the Canvassing Board ruled: after all, Franken expanded his lead significantly as a result being able to introduce into evidence previously rejected absentee ballots that met the trial court's legal standard; had Franken been behind after the Canvassing Board finished its work and going into the judicial trial, Franken might well have flipped the outcome at the trial based on the court's interpretation of the relevant Minnesota statutes.  Coleman equally could have flipped the outcome at trial if there had been enough ballots cast for him.

In sum, whatever criticism the WSJ or others might have about the way the Canvassing Board or the state judiciary handled the issues presented to them, this election was about as far from "stolen" as any extraordinarily close and intensely disputed election could be--and to use that term in this context is to rob it of appropriate meaning for those situations in which election officials abuse their power to throw an election for a preferred candidate, thereby robbing an opponent of a rightful victory.  LBJ's Senate primary victory in 1948 is generally understood to be a “stolen” election of this kind, where the use of the term is appropriate.

It is perhaps not surprising to be disappointed in the Wall Street Journal editorial page's use of rhetoric concerning an important issue of election law.  It wouldn't be the first time.  I hasten to add that I am frequently disappointed by the New York Times editorial page's use of rhetoric concerning voting matters.  I believe the editorial page of both papers, from their opposite political perspectives, use language in ways that distort the underlying truth of the situation.  I think this practice, from two of the nation's most important newspapers, greatly disserves the public in its effort to understand the operation of its own democracy.

In any event, I certainly hope that the Wall Street Journal's egregious mischaracterization of what happened in Minnesota does not detract from the American people's understanding of how disputes over which candidate won a major statewide election should be handled.  These disputes are an inevitable, if infrequent, feature of democracy.  Only one candidate can prevail in the post-voting dispute.  There is a way to resolve this kind of dispute without bias to either side, which is what Minnesota did.  Citizens, regardless of their personal partisan or ideological preferences, should be able to distinguish that kind of resolution from a tainted one.  So should the editorial pages of the nation's major newspapers.