There were no surprises in the rejection on Monday of Emmer’s petition before the Minnesota Supreme Court demanding reconciliation to take place prior to the recount beginning. That decision, along with the State Canvassing Board’s determination that the difference between Dayton and Emmer is 8,770 votes, or less than 0.5% (less than one-half of one percent) means the state mandated recount will begin on Monday.
But what if Emmer got his way? By that, what if in fact it is the case that there are phantom votes in Minnesota? What if in fact there are more ballots than those who voted, necessitating reconciliation? What if, per state law, election officials did randomly remove ballots from those lawfully cast as specified by state law, could Emmer win? In theory yes, but the math is against him.
How to do Reconciliation
Think about how reconciliation would work. Assume that there are 1,000 overvotes in the state of Minnesota. This means there are 1,000 more ballots than signatures in the registry. This means that 1,000 votes would have to be removed from around the state to bring the total number of ballots in line with the number of people who actually voted. Both Dayton and Emmer received approximately 43% of the statewide vote. All things being equal, a random distribution of 1,000 ballots removed across the state would mean 430 removed that had voted for Dayton and 430 for Emmer. Emmer is thus still behind by 8,770 and he has gained nothing. He still loses.
For Emmer to win on reconciliation, he has to assume more of the ballots removed per reconciliation belong to Dayton as opposed to him. Consider some possibilities.
Let us assume that if ballots had to be removed, 60% of all ballots removed cast a vote for Dayton and 40% cast a vote for Emmer. We shall assume no ballots removed voted for Horner. With this 60%/40% ratio there would have to be 43,850 ballots removed for Emmer to come even with Dayton and negate his 8,770 lead.
Spelled out in more detail:
.6x X 43,850 =26,310
.4x X 43,850= 17,540
8,770
Assuming 60% of the ballots removed is rather optimistic for Emmer. Assume instead that 50% of the ballots removed are cast for Dayton and 40% are for Emmer. The remaining 10% are for Horner and other candidates. With this ratio there would have to be 87,700 ballots removed for Emmer to pull even.
Spelled out in more detail.
.5x X 87,700 = 43,850
.4x X 87,770 = 35,080
8,770
But is there that much Fraud or Error?
Thus, for Emmer to tie Dayton, he would need at least 43,850 ballots to be removed. More likely, he would need to have closer to, if not more than, 87,700 removed. This means there has to be at least 43,850 overvotes or phantom votes (to use Emmer’s term) for him to at least tie Dayton. Given that there were 2,123,369 ballots cast in 2010, one has to assume at a minimum that 2% of all the votes cast were phantom, with it perhaps closer to 4%. This means that at least 2-4% of all ballots cast were improperly counted and need to be removed.
The degree of fraud or error to produce these numbers is unlikely. Under no conceivable circumstances can I imagine this type of error rate in the state. But this is precisely what Emmer has to assume if he were to win on his reconciliation argument.
What is my point?
The point is simple. Emmer cannot win even if he gets his way and were he to have won or would win his reconciliation legal argument. The math is against him given the number of ballots and errors that would have to occur for him to prevail. The outcome (Dayton winning) does not change if Emmer would have won his legal argument.
A Legal Issue: Reconciliation is Unconstitutional
Finally, assume that we do have to do reconciliation if there are discrepancies as Emmer alleges. The stated statutory remedy is randomly removing ballots. If that were to occur I think the state law is unconstitutional. By that, if voting is a fundamental right protected by the First and Fourteenth Amendments (and that is true), subjecting voters to random denial of having their ballot counted because of election official counting errors or mis- or maladministration is clearly a denial of a right to vote. I think the current state law is unconstitutional
Showing posts with label Reconciliation. Show all posts
Showing posts with label Reconciliation. Show all posts
Tuesday, November 23, 2010
Saturday, November 20, 2010
Politics and Law: The Real Issues Behind the Minnesota Gubernatorial GOP Recount Challenge
Alexis DeTocqueville once stated in Democracy in America: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Consequently the language of everyday party-political controversy has to be borrowed from legal phraseology and conceptions.” How true that is. Behind every legal question is a political issue. The same is true with the Minnesota Republican Party going to court this week asking for a reconciliation of votes in the 2010 gubernatorial election, claiming there are phantom votes out there that may have cost Emmer the election.
This is a legal challenge without merit. However, the issue is not about the law, but laying the political foundation or cover for a possible legal challenge to delay the seat of Dayton after he is probably declared the winner in mid-December.
Let us look at the so called legal claim. It asserts that the Hennepin and Ramsey County election officials have failed to undertake a reconciliation of votes after the election. Stated simply, there are more votes or ballots than actual voters–thus phantom or manufactured votes. In effect, vote fraud. The suit asks for reconciliation to take place before the State Canvassing Board meets to order a recount.
The suit is meritless and the timing of it is interesting. The period between election day and when local canvassing boards meet and then before when the State Board meets, is set up for election officials to finalize the count. This is routine and happens every election where the vote totals change due to counting and reconciliation. Thus, the lawsuit–when you cut to the chase–is to order the election officials to do the job they are already doing! Big deal.
The suit came about one week before the State Canvassing Board will meet. This is legally significant. As I point out in a Law and Politics piece by Paul Demko a court will likely invoke a well established administrative law rule that requires you to exhaust your administrative remedies before going to court. What this means is that the courts will not act until the election officials have finished doing their job. If when they are done there is a problem then the courts will act. Moreover, another legal doctrine comes into play–injury. Even if there are phantom votes, it is possible that the Canvassing Board and then eventual recount will find and correct the problem. Until such time, Emmer has suffered no real legal injury. Therefore, the court will not act.
Any lawyer who has taken administrative law or graduated from law school kindergarten knows these legal doctrines. So why file the suit? Enter politics.
First, Andy Birkey of the Minnesota Independent points out the affidavits filed by the GOP in the suit where mostly from Republicans. This fact, along with the flimsy legal assertions, raises suspicion, as I point out in that piece, that the suit is political. But what is the political motive?
Quite simply, I suspect that most Minnesotans do not want another recount but the law will require it. There is little indication that Dayton’s 8,700 vote led will change and he will not emerge the winner. In fact, to the best of my knowledge, no candidate with a lead this large has ever had it reversed on a recount. Thus, when on or around December 14, when the Canvassing Board declares Dayton the winner, Emmer and the GOP will have a hard time convincing Minnesotans that they have meritorious legal claims (that could reverse the election) justifying going forward. They need political cover. That is what this suit and their rhetoric are about now.
The goal is twofold: First, to raise suspicions in the minds of Minnesotans that there are serious legal questions about the race. Do that by raising questions of phantom votes, voter fraud, of manufactured votes. All this is an effort to provide political cover for a suit to delay seating Dayton so that they can have control of the Legislature and the Governor’s office for a few precious months. Over the next few weeks look to see allegations of fraud increase. Look to rhetoric stating “We want to make sure every vote counts” or “We are bringing this suit just to make sure the election is fair,” all as ways to justify a court challenge.
The second goal is to placate supporters. Face it, Emmer and the GOP ran a bad gubernatorial campaign and lost to Dayton who ran a good one. There is finger pointing and blame going around. Sutton and the GOP raise this challenges to shift the blame elsewhere. We did not lose, the other side cheated or won by fraud. This suit then simply is to comfort the faithful base.
About a week ago I was standing in the Hamline parking lot in the rain talking to my law school dean. He asked me what legal theories would justify a court challenge in the gubernatorial race. I said I could not come up with any serious enough that would eventually change the outcome. That is still my sense today.
This is a legal challenge without merit. However, the issue is not about the law, but laying the political foundation or cover for a possible legal challenge to delay the seat of Dayton after he is probably declared the winner in mid-December.
Let us look at the so called legal claim. It asserts that the Hennepin and Ramsey County election officials have failed to undertake a reconciliation of votes after the election. Stated simply, there are more votes or ballots than actual voters–thus phantom or manufactured votes. In effect, vote fraud. The suit asks for reconciliation to take place before the State Canvassing Board meets to order a recount.
The suit is meritless and the timing of it is interesting. The period between election day and when local canvassing boards meet and then before when the State Board meets, is set up for election officials to finalize the count. This is routine and happens every election where the vote totals change due to counting and reconciliation. Thus, the lawsuit–when you cut to the chase–is to order the election officials to do the job they are already doing! Big deal.
The suit came about one week before the State Canvassing Board will meet. This is legally significant. As I point out in a Law and Politics piece by Paul Demko a court will likely invoke a well established administrative law rule that requires you to exhaust your administrative remedies before going to court. What this means is that the courts will not act until the election officials have finished doing their job. If when they are done there is a problem then the courts will act. Moreover, another legal doctrine comes into play–injury. Even if there are phantom votes, it is possible that the Canvassing Board and then eventual recount will find and correct the problem. Until such time, Emmer has suffered no real legal injury. Therefore, the court will not act.
Any lawyer who has taken administrative law or graduated from law school kindergarten knows these legal doctrines. So why file the suit? Enter politics.
First, Andy Birkey of the Minnesota Independent points out the affidavits filed by the GOP in the suit where mostly from Republicans. This fact, along with the flimsy legal assertions, raises suspicion, as I point out in that piece, that the suit is political. But what is the political motive?
Quite simply, I suspect that most Minnesotans do not want another recount but the law will require it. There is little indication that Dayton’s 8,700 vote led will change and he will not emerge the winner. In fact, to the best of my knowledge, no candidate with a lead this large has ever had it reversed on a recount. Thus, when on or around December 14, when the Canvassing Board declares Dayton the winner, Emmer and the GOP will have a hard time convincing Minnesotans that they have meritorious legal claims (that could reverse the election) justifying going forward. They need political cover. That is what this suit and their rhetoric are about now.
The goal is twofold: First, to raise suspicions in the minds of Minnesotans that there are serious legal questions about the race. Do that by raising questions of phantom votes, voter fraud, of manufactured votes. All this is an effort to provide political cover for a suit to delay seating Dayton so that they can have control of the Legislature and the Governor’s office for a few precious months. Over the next few weeks look to see allegations of fraud increase. Look to rhetoric stating “We want to make sure every vote counts” or “We are bringing this suit just to make sure the election is fair,” all as ways to justify a court challenge.
The second goal is to placate supporters. Face it, Emmer and the GOP ran a bad gubernatorial campaign and lost to Dayton who ran a good one. There is finger pointing and blame going around. Sutton and the GOP raise this challenges to shift the blame elsewhere. We did not lose, the other side cheated or won by fraud. This suit then simply is to comfort the faithful base.
About a week ago I was standing in the Hamline parking lot in the rain talking to my law school dean. He asked me what legal theories would justify a court challenge in the gubernatorial race. I said I could not come up with any serious enough that would eventually change the outcome. That is still my sense today.
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