Editorial: Court review is key in Senate recount

Last update: January 5, 2009 - 6:51 PM

The State Canvassing Board has spoken. Based on a meticulous hand count of every ballot in its lawful reach, the board certified Monday that DFLer Al Franken got more votes than Republican Norm Coleman in the Nov. 4 U.S. Senate election.

As Minnesotans are learning, that determination is not the same as declaring a winner in this amazingly close race. Coleman attorneys said that the now-former senator will file an election contest, arguing that he, not Franken, is the rightful winner. By law, no election certificate can be awarded until that contest is done.

Coleman is justified in going to court. We give him that nod not because we believe that the Canvassing Board has erred. On the contrary, the board rigorously followed state law and court instructions. Its work was remarkably thorough, careful and open to inspection. The Canvassing Board served Minnesota well, and deserves thanks.

But as several of the judges who sit on the board pointed out during their proceedings, there’s only so much that an administrative, vote-counting body can do. The Canvassing Board lacked the authority to order county election officials to act. It could not conduct evidentiary hearings, take testimony or make findings of fact.

Courts alone have the legal standing to do those things. That makes the judicial branch best suited to pass judgment on which remaining rejected absentee ballots should be counted. The courts can better determine whether some ballots were double-counted, as the Coleman campaign claims. They can better decide how or whether the 133 missing ballots in Minneapolis should be counted.

Both Franken and Coleman should want court-ordered answers to questions that the Canvassing Board could not answer. The winner of this contest deserves the legitimacy that would come with a court’s politically independent finding that he got more votes than his opponent. The loser deserves to know that every legal ballot was counted and that he came up short.

But more than the fate of two candidates and one Senate seat is at stake here. Minnesota voters and lawmakers also deserve a court’s answers to the questions about ballot handling that this recount has raised. Of particular concern should be the fate of legitimately cast absentee ballots rejected in error on Election Day by local election officials. Voters deserve a court’s assurance that every one of those set aside by mistake was found and counted. Policymakers need to better understand why mistakes were made, so that election administration can be improved.

As Canvassing Board member and Ramsey County Chief Judge Kathleen Gearin said Monday, “Voting is sacred. Every voter’s vote should be treated respectfully.” That’s what the Canvassing Board did, within the limits of its authority. The courts should now finish the job in the same spirit.

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