Jennifer Marsico, Research Assistant, AEI-Brookings Election Reform Project

January 21, 2009

Though Election Day was more than two months ago, there is one high-profile race yet to be decided: the Minnesota Senate race. At the start of the recount process, incumbent Norm Coleman (R) had a 215-vote edge on the challenger, Al Franken (DFL)--a remarkably small number given the fact that almost three million votes were cast. Minnesota election law states that a general election recount is automatic when the margin of victory is less than one half of one percent. To put this margin in perspective, the separation between Coleman and Franken at the start of the recount was less than one-hundredth of one percent. But after the mandatory hand recount, and following a number of additions and subtractions from the ballot count, the results had flipped, with Franken gaining a 225-vote lead over Coleman.

The outcome of this Minnesota race could have an impact on the way business is done in the U.S. Senate. If Franken indeed becomes the next senator from Minnesota, Democrats will hold 57 Senate seats. Since Independents Bernie Sanders and Joseph Lieberman will caucus with the Democrats, Democrats will in theory have 59 votes--one short of a filibuster-proof majority. Though Democrats will still have to contend with the potential of a filibuster even if Franken is declared the winner, the addition of eight new Democratic members will allow party leaders in the Senate to have greater flexibility in assembling enough votes to pass a bill.

Minnesota recount procedures have impacted the vote count in this race, and they could affect who the ultimate winner is as well. But in an election this close, involvement by the courts seems inevitable. Though the state Canvassing Board has declared Franken the winner, further legal challenges have already been filed, meaning that a resolution is likely weeks away. Naturally, election administrators would like to ensure the legitimacy of all elections, but in races as close as this, it may be impossible to expect both campaigns to accept the election results. It is impractical to think that questionable election outcomes can be eliminated entirely. Therefore, election experts and administrators should attempt to pinpoint the causes of controversy in the election administration process and then devise plans for fixing these problems.

Since the vote separation between Coleman and Franken is miniscule, the details of recount procedures have been, and continue to be, exceptionally important in determining which nominee is the victor. As controversial as the result is likely to be, it has been complicated further by the Minnesota recount process itself, which opened the door to the subjective interpretation of individual votes. All Minnesota counties use optical scan ballots (paper ballots that are marked by voters and then fed through machines that read the votes), so recounts are done by hand. Additionally, state law allows election officials to surmise voter intent when a ballot is marked in an unusual way, maintaining that "a ballot or vote must not be rejected for a technicality if it is possible to decide what the voter intended, even though the voter may have made a mistake or the ballot is damaged." Though the Minnesota recount guide is careful to provide specific examples of ballots that should and should not be counted, there is still room for discretion on the part of the ballot counters. Here are just two examples from the Minnesota recount guide (PDF):

"A mark made out of place but close enough to a name or line to determine voter intent are [sic] counted."
Among the images that the recount guide uses as an example of a vote that would be counted is a candidate with an "x" on the right side of a candidate's name (the bubble that should be colored in is located to the left of the candidate's name). However, the meaning of such an "x" seems much more debatable than the Minnesota recount guide contends; it is possible that marking a ballot with an "x" could indicate opposition to a candidate rather than support.

"If marks are made next to two candidates and an attempt was made to erase one of the two, vote is counted for the remaining marked candidate."
Naturally, when a ballot is "overvoted" (or two-plus votes are cast for the same office), it is disqualified. But where does an election official draw the line between an overvote and an erasure? Such a decision falls into the realm of subjectivity.

While such possibilities for interpretation variations might normally have little chance of impacting the outcome of an election, the opposite is true for this Senate race-a decision on which ballots should be counted has the potential for affecting whether Coleman or Franken will represent Minnesota in the 111th Congress. According to the results (PDF) of the state general recount (certified by the Minnesota Canvassing Board), the Coleman and Franken campaigns each challenged more than 3,000 ballots statewide-far greater than the vote margin separating the two candidates.

On January 5, the Minnesota Supreme Court rejected a Coleman campaign request that about 650 rejected absentee ballots be counted. However, the court declared that Coleman's request could still be handled as part of an election contest, opening the door to continued legal challenges about these uncounted ballots. The Coleman campaign filed a lawsuit contesting the election results, as certified by the Canvassing Board, on January 6; the ballot counting in Minnesota, therefore, may not yet be complete. With Coleman's filing of an election contest, the outcome of the race is now in the hands of a three-judge court whose members will be chosen by Associate Justice of the Minnesota Supreme Court Alan Page. Ned Foley of the Moritz College of Law at Ohio State recently argued that the three-judge panel should be made up of judges agreed upon by the two campaigns; this is how the 1962 Minnesota gubernatorial election was decided. Given that it may not be possible for the Coleman and Franken camps to agree on a set of judges, a politically balanced panel selected by third parties could suffice, as it is likely that such a panel's decision will be deemed legitimate by both campaigns.

From an election reform perspective, one wonders how the process of election administration could be improved as to prevent the need for legal involvement in determining election outcomes. In truth, subjectivity can never be eradicated completely from the recount process, even in states with legal measures meant to reduce it. In Minnesota, in fact, to limit partisanship in the recount process, the hand recount for the Coleman-Franken race was handled by numerous three-member teams around the state, with one member chosen by the Coleman campaign, one by the Franken campaign, and one agreed to by both campaigns. The state has been lauded for providing detailed descriptions of which ballots should count and which should be rejected. Additionally, the aforementioned automatic hand recount for close elections is designed to prevent machine error from altering the outcome of an election. But human error and human subjectivity on the part of election officials will always enter into a hand recount, despite great efforts to remove them from the process. As noted above, the Minnesota recount guide maintains that as long as a mark is made "close enough to a name or line to determine voter intent" signifies a vote that should be counted. Yet the decision on how close is "close enough" is left up to each three-person team of election officials. Minnesota followed the statewide hand recount with a review by the five member State Canvassing Board, chaired by the Secretary of State and including four judges-two from the Minnesota Supreme Court and two from the Ramsey County Court. The board examined more than 3,000 ballots that had been challenged during the hand recount by one of the two candidates, developing their own decision rules and making decisions in televised proceedings. All the 6,000 ballots initially challenged by the candidate teams were scanned and put on-line by the Minneapolis Star-Tribune, enabling tens of thousands of people to make their own judgments and compare them with the Canvassing Board decisions.

The closeness of the Coleman-Franken election is certainly unusual--it was one of the closest statewide elections in recent memory--and Minnesota clearly already had procedures in place to mitigate some (but not all) of the subjectivity in the recount process. Is there anything else that can be done to improve the way in which election officials deal with such a close contest? Some observers are calling for an increased reliance on early voting to ease the pressure that polling places face on Election Day, allowing poll workers to give more detailed instructions to voters and minimizing the number of voters who need to rely on absentee ballots. But the problems posed by the recent Minnesota Senate election cannot necessarily be fixed by offering a longer voting period. In order to deal more effectively with the problem of incorrectly marked absentee ballots, for example, it would be advisable to focus on ways to expand voter awareness concerning the process of voting absentee. If voters are given clear and correct information about how to fill out an absentee ballot, then the number of rejected absentee ballots may decrease, regardless of the total number cast. It would also help to inform election judges about the legitimate reasons for rejecting absentee ballots; the nearly 1,000 rejected absentees ultimately counted by the Minnesota Canvassing Board had been wrongly rejected, most for a reason not mentioned or included in Minnesota law. Though there may be no way to guarantee that elections as close as this Minnesota race will have smooth outcomes deemed to be legitimate by winners and losers, efforts should still be made to correctly diagnose where problems occurred in the election administration process and apply the recommendations most likely to fix these problems.

Jennifer Marsico can reached at jennifer.marsico@aei.org.

Viewpoint is an occasional feature analyzing various election reform issues.