Minnesota has the opportunity to remain a model to the nation on election recounts. But the state risks squandering that opportunity unless it prepares to repeat the fair procedure it used previously.
As the Coleman-Franken recount begins, many have mentioned the successful recount of the 1962 gubernatorial election between Elmer L. Andersen and Karl Rolvaag. But insufficient attention has been given to the keys to that success: the composition of its three-judge panel and the method by which this tribunal was chosen.
As described in "Recount," the definitive tale of the Andersen-Rolvaag saga, attorneys for the two candidates sat down and worked out a deal on who the three judges would be. The arrangement had the blessing of the state's chief justice, Oscar Knutson, whose approval was required to empower the panel.
The two sides picked one Republican judge and one DFLer. They agreed on a third judge who was seen as neutral, having been put on the bench by a DFL governor but then elevated by a Republican.
Selected by the mutual agreement of both sides in this way, the recount panel was structurally impartial and thus inherently fair. Accordingly, neither candidate could complain about its decisions. In the words of "Recount," written by Ronald F. Stinnett and Charles H. Backstrom, "both Republicans and DFLers found no grounds on which to criticize adversely the procedures and actions of the judges."
It is obviously no fun to lose an election by less than 100 votes out of more than a million cast, especially after one has been initially declared the winner. Yet Andersen accepted his defeat as the product of the proper process, which he had an equal hand in creating.
Thus, Andersen's concession did more than just acknowledge the power of the tribunal to rule against him, as Al Gore did in 2000 when the U.S. Supreme Court stopped the recount of Florida's presidential ballots. Andersen recognized the rightness of the method used to resolve his electoral battle with Rolvaag, and this distinction is what makes Minnesota's historical experience a model for future recounts.
Just last month, a group of scholars conducted a simulated McCain vs. Obama lawsuit to test this Minnesota model in a presidential context. Even though hypothetical, the case was heard and "decided" by a distinguished panel of three retired jurists: one Republican, one Democrat, and a third chosen by the other two. (Details of this exercise can be found at www.electionlaw.osu.edu/electioncourt.)
Interestingly, the panel was unanimous in its conclusions, just like the Andersen-Rolvaag panel on which it was modeled. This unanimity stands in stark contrast to Bush vs. Gore, which left bitter resentment among the many Gore supporters who considered that 5-4 ruling procedurally illegitimate.
One theory for this unanimity is that structurally neutral panels tend to gravitate to the center in their deliberations, whereas ideologically imbalanced courts (like the one that decided Bush vs. Gore) are more likely to split apart. While this theory needs further study, Minnesota can be proud that its Andersen-Rolvaag recount has inspired this social-science inquiry.
Yet only a month after the McCain-Obama experiment, the same social scientists are watching the Coleman-Franken recount unfold. They ask: Will Minnesota stay true to its own inspirational model? Right now, this year's recount remains before the State Canvassing Board. Although there has been much praise for the four members of the board appointed to join Secretary of State Mark Ritchie, the board nonetheless lacks the inherent neutrality of the panel chosen by Andersen and Rolvaag.
If both Coleman and Franken accept the board's decision, its composition does not matter, and the state can declare another recount success. But if either candidate challenges the board's decision in court, then it will be necessary to replicate the 1962 precedent. As before, the state's chief justice can permit the two candidates to name the three judges. Can Coleman and Franken cooperate just enough for that? If not, then the chief justice can do as in the McCain-Obama exercise: pick one judge from each party and let these two judges mutually select the third.
As long as the selection method yields the requisite structural impartiality of the three-judge panel, then any court decision ending the Coleman-Franken election will remain true to Minnesota's heritage of fairness. But if the court that resolves this election is not structurally neutral, then the outcome would look more like 2000 -- with power, but not necessarily rightness, prevailing. The losing candidate and his supporters would be in a position to attack the process as inherently unfair, and Minnesota would have lost its status as a model on how to hold a recount.
Edward B. Foley, a professor at the Ohio State University's Moritz College of Law, also directs the Election Law @ Moritz program.