(update below): The legal proceedings continue in Minnesota. A few days ago Michael Stokes Paulson writing in (what else could it be) the Wall Street Journal makes the argument that the recount in Minnesota, due to the irregularities, was unconstitutional and therefore there should be a re-vote.
In the process Paulson rehashes much of the same old nonsense that has been definitively debunked.
Consider the inconsistencies: One county "found" 100 new votes for Mr. Franken, due to an asserted clerical error. Decision? Add them. Ramsey County (St. Paul) ended up with 177 more votes than were recorded election day. Decision? Count them. Hennepin County (Minneapolis, where I voted -- once, to my knowledge) came up with 133 fewer votes than were recorded by the machines. Decision? Go with the machines' tally. All told, the recount in 25 precincts ended up producing more votes than voters who signed in that day.
There are NO inconsistencies here (see my link above) and the last sentence is embarrassingly dim for someone who apparently is a law professor and a former associate dean of a law school (actually it is embarrassingly dim for anyone, never mind a law professor). The absentee ballots quite obviously are the cause of more votes than voters who signed in on election day and for the countless time, there has been no evidence or claim that that there are counties where the vote totals exceeeded the number of people who legally voted.
The following, as I have explained, is the only justifiable complaint. Paulson says:
...Then there's Minnesota's (first, so far) state Supreme Court decision, Coleman v. Ritchie, decided by a vote of 3-2 on Dec. 18. (Two justices recused themselves because they were members of the state canvassing board.) While not as bad as Florida's interventions, the Minnesota Supreme Court ordered local boards to count some previously excluded absentee ballots but not others. Astonishingly, the court left the decision as to which votes to count to the two competing campaigns and forbade local election officials to correct errors on their own.
No. That is not an accurate portrayal of what happened. The total number of falsely rejected absentee ballots were identified by local campaign officials independently (over 1300) which, subsequently campaigns got the right to veto due to a very unwise wise decision by the Minnesota Supreme Court. BUT the local election officials absolutely had the chance to correct the errors (going through some ballots that Coleman disputed 3 times). Not at all astonishingly Paulson gets it completely wrong. He continues:
The standards for evaluating rejected absentee ballots likewise must be uniform, with decisions made according to legal standards, not by partisan campaigns.
The standards were uniform and very clear (see my previous post). The problem was that originally Coleman didn't want any falsely rejected absentee ballots * (he thought he was winning then) and went to court to prevent it, which in turn led to the indefensible decision of the Minnesota Supreme Court to allow campaigns the right to veto ballots. (There is of course a very easy remedy if the Court does rule that, consistent with Bush vs. Gore, that standards must be applied uniformly to the ballots. Count the 400 odd ballots that were identified as falsely rejected by the local campaign officials but were vetoed by the campaigns. (And Franken will almost certainly still win)
*[On the absentee ballot question Coleman has showed a remarkable ability as a contortionist. From not wanting any counted (claiming there were NO falsely rejected absentee ballots) to desperately trying to limit the number counted via the courts to today's position of, can you believe this?, wanting all 12000 rejected absentee ballots counted. Classic]
Paulson concludes:
And what if there is no reliable way to determine in a recount who won, consistent with Bush v. Gore's requirements?
The Constitution's answer is a do-over.
Actually as has been painstakingly explained by me and many others, the recount in Minnesota has been as reliable as humanly possible. Nate Silver adds, "there is certainly no sense in the Constitution that the Senate is supposed to say "Ehh... it's pretty close -- let's have a do-over!"."
Two Hail Marys are going on here. Count all the absentee ballots or redo the election. Neither are close to being warranted.
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Earlier today Franken's attempt to have Coleman's challenge summarily dismissed is in limbo with the court currently considering the motion. Tomorrow they will consider Coleman's counter-motion to have the court rule for a "summary judgement."
Maybe, though, Coleman finally sees the writing on the wall.
Norm Coleman (R) has taken a job with the Republican Jewish Coalition while contesting Democrat Al Franken’s lead in the Minnesota Senate race, his campaign confirmed Thursday.
In what could be seen as a sign that Coleman thinks his bid to return to the Senate may be lost, he has signed on to do consulting work for the group, which is comprised of a number GOP leaders.
Let's hope so anyways.
Update:
I think Brad at Bradblog has it exactly right on Reid's announcement today that the Democrats will probably try and seat Franken next week.
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