A nationally recognized election law scholar, Edward Foley of Ohio State University, watched Minnesota's 2008-09 U.S. Senate recount and election contest and became an admirer of this state's precise election laws and even-handed administration. But, he added, "you have the virtue of fairness at the expense of taking too long." He warned that a close election for governor or president would make that flaw loom large.
Two years later, Foley seems prophetic. The Mark Dayton and Tom Emmer unofficial vote totals in the Nov. 2 election remain close enough to trigger a recount under state law.
Foley told me this week that he's pleased to know that the one big defect discovered in 2008-09 -- too many improperly rejected absentee ballots -- does not appear to be a factor this time. Changes in state election law in 2010 streamlined the processing of absentee ballots and gave voters who made mistakes a better chance to correct them. As a result, only 3,000 absentee ballots out of more than 2 million total votes cast were rejected -- nearly 10,000 fewer than two years ago. And chances are better that the rejections were proper.
But, Foley added, Minnesota "missed an opportunity to streamline the whole recount/contest process" to hasten its conclusion. This state still conducts its tedious hand recount, sends challenged ballots to the State Canvassing Board for review, lets the Canvassing Board announce the result, and then allows an opportunity for litigation. The Canvassing Board can typically end its work by Jan. 1; the lawsuit phase in 2009 took six more months.
A faster system would combine those two steps into one, and put the recount in the hands of the courts. That's the way it was done in 1962-63, the last time a gubernatorial election's outcome was in doubt in this state, because the Canvassing Board then did not order a recount. Even so, Karl Rolvaag was not sworn in as governor until March 25 -- having won by a mere 91 votes. (Dayton's margin at this writing: 8,751.)
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