Yesterday, the election officials in the most populous county in Minnesota had their revenge on the GOP for their tactic of challenging ballots during Minnesota's statewide hand recount in the race for Governor. The Interim Director of Elections for Minneapolis is one such local election official who had to watch as thousands of legitimate ballot determinations were improperly challenged by GOP volunteers as part of a misguided effort to shift public perception of their candidate's fortunes during the hand recount.
Saturday turned out to be the resolution of a few pretty stunning events, at least from a legal-historical perspective, and amounts to yet another vindication of the professionalism and nonpartisanship of local officials charged with ensuring the integrity of Minnesota's elections.
Yesterday's events, and their context, after the cut...
This week Minnesota held yet another statewide hand recount of ballots. Minneapolis's Interim Director of Elections was at the front lines, helping Hennepin County recount about a half-million ballots. There, the officials had to deal with Republican challengers frivolously or improperly objecting to election judges determination on over 2600 of those ballots.
The local officials asked the GOP to review and withdraw challenges as they went along, because multiple copies would have had to have been made of each challenged ballot, which would cost the county thousands (possibly tens of thousands) and slow the progress of the recount. The GOP refused, and the challenges racked out way out of proportion to anywhere else in the state, and to any sense of reason.
In 2008 the state canvassing board had to address every ballot challenge brought by either campaign, which numbered over 6,000. But the campaigns withdrew roughly 5,500 in a sort of Détente after the board continually pressed them to reduce the number. They finally got down to near 1,000 challenged ballots which took about a week to review.
After that experience in 2008, the Secretary of State enacted a regulation allowing local officials to deem challenges frivolous, and challenges so deemed would not have to be reviewed by the State Canvassing board. The regulation was new and untested in 2010, and the GOP poked a few holes in it before the recount started, arguing that only the Canvassing Board should be making that determination. There was a possibility that the GOP would demand the Canvassing Board review their outsized number of ballots challenged in Hennepin County, upon threat of a lawsuit if they didn't.
On Friday, the head litigator for the GOP--until very recently the Chief Justice for the Minnesota Supreme Court--got a stern lecture from another Supreme Court Justice (sitting as as a member of the state canvassing board) about the rules of professional responsibility for attorneys. It was a stunning and I would say historic moment in Minnesota history.
First of all, that Justice Paul Anderson felt he needed to give the lecture suggests the sort of precipice the GOP has been walking along through out this entire recount process. Among the Supreme Court's jobs is to be the final authority on attorney discipline, and if a Supreme Court Justice cautions you to watch your step, you take heed. Secondly, it demonstrates the peril of a Supreme Court Justice leaving for private sector work, and so quickly becoming a hired gun in a high profile political case, particularly one the pursuit of which is going to require a great deal of precipice-walking because neither the facts or law are on your side.
Thirdly, I think it reflects how hiring the former Chief Justice (who had been on the State Canvassing Board in 2008) turned out to be a political and practical liability, as he, of all people, knew exactly how the State Canvassing Board operates, and what sorts of challenges should never have been made in the first place, much less brought before the canvassing board for review. For him to be the public face of the campaign before the canvassing board made it quite simple to attribute his understanding of the 2008 Board's attitude about frivolity to his client.
The state canvassing board does not have a lot of power to order anyone to conduct themselves in any particular way, but Justice Anderson's admonishment did the trick. The board voted to allow the GOP another chance to reduce the number of challenges deemed frivolous by local officials. Everybody wasted a Saturday (including me because I'm a recount groupie and hobbiest) so the GOP could do what the GOP should have been doing all week: withdrawing frivolous and improper ballot challenges. 99% of the challenges were withdrawn.
Minneapolis's Interim Director of Elections got to sit across a table from former Chief Justice Eric Magnuson while he personally withdrew hundreds of challenges that should have never been lodged in the first place. After he had been told by a current member of the Minnesota Supreme Court, more or less, that his license to practice law was in the balance.
All but 24 of the over 2600 challenges deemed frivolous were withdrawn.
This suggests to me that, in the end, the Secretary of State's system worked, even if not quite as intended.