OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz

Free & Fair

Minnesota under the Microscope

According to the Minnesota Star-Tribune this Wednesday morning, the U.S. Senate seat in the North Star State faces an almost certain recount. Election Law @ Moritz will analyze this recount process as it unfolds. Meanwhile, two general preliminary observations are in order.

First, as shown in our book From Registration to Recounts: The Electoral Systems of Five Midwestern States, Minnesota has a reputation for being a national leader in the quality of its voting administration process. In 2006, for example, Minnesota conducted a very successful audit of that year’s election. Nothing, however, tests a state’s voting administration system like a statewide recount, and the nation—as well as the state—stands to learn a lot (and thus benefit from) the scrutiny that Minnesota is likely to undergo in the next days and weeks. We will learn more about the operation in practice of Minnesota’s version of Election Day Registration, for example, and whether that practice should be a model for more states—or perhaps whether Minnesota would have benefited from a move to “Automatic Voter Registration,” as proposed by its Secretary of State and enacted by its legislature, but vetoed by its Governor.

Second, in 1962, Minnesota had an experience with a statewide recount in its gubernatorial election of that year. That experience has served as a model for the design of the McCain v. Obama simulated adjudication we conducted last month. The essential lesson of that experience was that Minnesota was able to put aside partisan divisions that threatened the early stages of the recount process. After the Minnesota Supreme Court split on a party-line vote over canvassing procedures, the two main gubernatorial candidates that year developed a special 3-judge panel (with one judge from each party, and the third recognized by all as a neutral) to complete the recount process. This institutional innovation resulted in an outcome that was widely perceived by both sides and the public to be fair.

It will be interesting to observe whether Minnesota’s current procedures for conducting recounts are similarly viewed by partisans and the public generally as able to handle a recount fairly and impartially. One of the themes that emerged in our Minnesota chapter of From Registration to Recounts is that residents of the state are concerned that its politics have become increasingly polarized—and marred by partisan divisiveness—in the way that politics nationally and in other states have become. In our interviews with state and local officials for the book, some expressed regretful doubt that Minnesota could currently handle a statewide recount in the same spirit of bipartisan cooperation (on behalf of the people of the state as a whole) in the same successful way that the participants were able to muster for the recount of the 1962 gubernatorial election. How Minnesota handles the recount process over this year’s U.S. Senate race may prove these fears unfounded (or perhaps not—we can only wait and see).

Finally, regarding the procedures for handling a statewide recount of this type and the need for bipartisanship of the kind displayed in the 1962 situation, it is worth observing that Minnesota has had a strong tradition of independent and third-party candidates. Jesse Ventura, for example, became the state’s governor as an independent. And this year’s U.S. Senate race featured a strong independent candidate, who captured roughly 15 percent of the vote. Minnesota certainly needs voting administration procedures that are fair to independent as well as major-party candidates. But in the context of a recount over which the two leading candidates prevailed, the same need for fairness for all other candidates moves into the background. Now it is appropriate to focus on the fairness and impartiality of the recount procedures with respect to the two candidates who remain vying for the electoral prize.

In this context, the special recount procedures that the two 1962 gubernatorial candidates devised worked especially well. Those procedures were structurally impartial between these two candidates and were perceived as such. It will be interesting to see whether the state can be equally successful this year.

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


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

more commentary...

In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

more EL@M in the news...

Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

more info & analysis...