Having been a county election official myself many years ago, I know how difficult it can be to administer an election and make the proper decisions when problems ensue. However, the flawed and extremely questionable decisions being rendered by the Minnesota Canvassing Board are remarkable for their inconsistency except for one consistency – they seem to be applying different rules to the same circumstances depending on whether or not they favor Al Franken.
John Lott’s article for Fox News does a remarkable job of illustrating the problems with the Canvassing Board’s decisions. As an example, Lott points out that on ballots where the oval next to Senator Coleman’s name was filled out but there is also an “X” through the blacked-out oval, the Board decided that the voter had changed his mind and did not want to vote for Coleman, so the ballot was considered a vote for no one. However, when the exact same kind of markings were found for Al Franken on other ballots, the Board decided that they were indeed votes for Franken.
Since the Board considered an “X” through an oval on the Coleman ballots to be a decision by the voter to try to change his mind and x-out the vote for Coleman, then obviously if you find a ballot with a blacked-out oval next to Coleman’s name and an “X” next to Franken’s name, it should be considered a vote for Coleman, right? Wrong, the Board decided that such ballots will be considered a vote for Franken.
It was these kinds of action by state election officials – inconsistently applying rules to discern the intent of the vote in a manual recount – that caused the U.S. Supreme Court to stay the recount being conducted in Florida in 2000. The Court decided such a recount was a violation of the Equal Protection Clause. The fundamental nature of the right to vote “lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” A state cannot through “arbitrary and disparate treatment, value one person’s vote over that of another.” Yet the examples provided by John Lott show that the Minnesota Canvassing Board is engaging in exactly that type of arbitrary and disparate treatment, treating possible votes for Coleman differently than votes for Franken.
Unless the Board corrects its procedures, a federal court should have no choice but to step in to stop this Equal Protection Clause violation. Let’s hope that the Board revisits its determinations and corrects them before it is too late.