COOPER: Bush v. Gore redux?

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By Horace Cooper

OP-ED:

There are striking similarities between the legal arguments put forward in the lawsuit against Al Franken filed on Jan. 6 by Norm Coleman's campaign and the arguments put forward by the Bush campaign in suit against the Gore campaign after the election debacle in November, 2000.

The Coleman campaign in the Senate race in Minnesota makes the argument that due to "irregularities, mistakes, and violations of law" the recount procedures adopted by the canvassing and elections board caused Al Franken to be erroneously certified as the election winner. If the argument sounds familiar it's because vote counting irregularity was a key issue in the landmark Bush v. Gore decision in 2000. There, the United States Supreme Court determined that "the recount mechanisms implemented in response to the decisions of the Florida State Supreme Court do not satisfy the minimum requirements for non-arbitrary treatment of voters." According to the Coleman campaign, Franken's purported victory during the recount came about because of inconsistencies by the Minnesota State Canvassing Board, the state-authorized election board. An examination of the systemic nature of these irregularities during the recount reveals clearly that the equal protection principles enunciated by the Supreme Court in the Bush v. Gore case have been violated.

For example, in a number of precincts in Minnesota ballots were "double counted" - that is counted twice because originals and duplicates were not matched up. This was done in multiple precincts despite the fact that such a practice contravenes common sense and, more importantly, Minnesota law. When this matter was presented to the Minnesota Supreme Court, instead of ruling on the point and excluding these ballots, the court determined that a post-election contest was the proper means of challenging this practice. In other words, go ahead and count them and we'll look at it after the canvassing board has named a winner.

Also, a sizeable number of absentee ballots were improperly accepted by local election officials despite the fact that the persons who cast these ballots were a) not properly registered in the state of Minnesota, b) had voted in person in Minnesota on election day or c) had voted absentee in another Minnesota precinct.

Additionally, ballots were allowed to be considered lawfully cast in some precincts even though they were "mutilated, defaced, obliterated" and in such a condition that the intent of the voter could not possibly be ascertained.

Perhaps most troublesome of all was the existence of significant numbers of ballots which were not counted on election night but that appear to have been "found" subsequently and made available during the recount. In some precincts the total of these newly "found" ballots caused the total number of ballots cast to exceed the total number of persons who voted.

Combined, these practices, if unchallenged, will result in changing the election night re-election of Norm Coleman to the United States Senate to the election in January, 2009 of Al Franken. Now, that would be okay if that reflects the preferences of the voters of Minnesota. But, in making that determination one must ask what standard is being used to examine a given voter's intentions and is that standard uniform? This situation is remarkably similar to the circumstances that occurred in Florida during the presidential election recount in 2000. In addition to a statewide recount that actually was a "selective counties" recount, there were serious questions associated with the actual recounting of ballots. Ballots that were intended to be perforated by a stylus were either, through error or deliberate omission, not perforated properly to enable a machine to count them as votes. Yet in some counties, a hanging "chad" was counted as a vote, in others indentation or impressions alone were sufficient to count as a cast vote. In fact, the standards for accepting or rejecting a ballot varied not only from county to county but from recount team to recount team within a given county.

An egregious example was Palm Beach County's decision at the beginning of the recount process to follow a decade-old rule precluding the counting of "dimpled chads" only to switch midway during the recount to a new rule that relied on the ability of light to shine through to determine whether a chad should be counted as a vote. And yet before the recount was finished, Palm Beach switched back to the 10-year-old rule.

These arbitrary and inconsistent standards violated the 14th Amendment's guarantee of equal protection. As the court noted in 2000, "Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another." And as the court also noted, state recounts "require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matter." As of now, the Minnesota State Canvassing Board has failed to adhere to this constitutional standard. Double counting, allowing absentee ballots from ineligible voters, mysterious ghost ballots - all varying from precinct to precinct - not only divests the voters from any sense of who the actual winner of the election is, but more importantly is just plain unconstitutional.

Horace Cooper is a legal commentator and senior fellow with the American Civil Rights Union.