Seldom are judges publicly faulted for following the law too exactly. But that is likely to be one of the issues raised in response to Tuesday's order by the three judges presiding over Norm Coleman's contest of Al Franken's 225-vote lead in their U.S. Senate race.
The judges called for the examination, and possible counting, of 400 additional absentee ballots on April 7, more than five months after the Nov. 4 election that ended in a near-draw. That's the number that they think may yet be found to have met state law's strict absentee voting requirements, even though those ballots initially were set aside as deficient by local election judges.
It's notable that in choosing to examine 400 more ballots, the court is in the same numerical ballpark as were county election officials during the November-December recount. Those seasoned local elections administrators said then that about 1,350 ballots had been rejected in error. The Canvassing Board, hampered by a state Supreme Court ruling that said both campaigns had to agree before a rejected ballot could be opened and counted, opened only 933. Allowing the local election officials to decide which ballots had been mistakenly handled on election night, without the campaigns' interference, might have expedited this drawn-out process.
Tuesday's order adheres closely to state law as it describes how the three judges winnowed 11,000 as-yet-unopened ballots down to 400. At the heart of their argument is the legal principle that in Minnesota, voting by absentee ballot is more a privilege than a right, and can be governed by procedures set out in statute.
Coleman argues, in essence, that because those procedures may not have been followed uniformly in every county and precinct, the three judges ought to be consistent in applying them to additional ballots now. Otherwise, he suggests, voters may be deprived of their right to equal protection under the law.
Thus far, the judges have exhibited no sympathy for that argument. But neither have they addressed it thoroughly. Their chance to do so is coming soon. Next week's ballot inspection and vote-counting exercise should be followed in short order by the three judges' final ruling. Since Coleman's attorneys say their equal-protection argument will be at the center of an appeal they are already preparing, the three-judge panel would do well to address that argument in some detail.
Understandably, Minnesotans don't like the duration of this contest. Many won't like the ultimate outcome. The case will long be cited as an indictment of state law's complicated, error-prone procedures for casting absentee ballots. To their credit, the Legislature and Secretary of State Mark Ritchie are considering changes to simplify the system.
But Minnesotans can be assured that the effort by the Canvassing Board and the court to identify and count every legally cast ballot has been thorough, painstaking and transparent. We see no evidence that partisans have sought to "steal" this election, or that bias in favor of either Coleman or Franken has tainted the two panels' work. Minnesota's civic infrastructure has stood up well to the scrutiny of the past five months. As the election contest reaches its climax, we're pleased to observe that the contest seems so far to have been handled with fairness and good faith.