Lori Sturdevant: We've been down this recount road before

  • Article by: LORI STURDEVANT , Star Tribune
  • Updated: January 11, 2009 - 10:51 AM

The 1962-63 precedent gives Norm Coleman a green light to go to court. But a red light lies ahead.

Plans are afoot to remember a late, great Minnesota governor, Elmer L. Andersen, on his 100th birthday this June.

Not that he's far out of mind. Not when a hung-up U.S. Senate race has any Minnesotan who remembers 1962-63 mindful of the hung-up gubernatorial race then between Republican incumbent Andersen and his DFL challenger, Karl Rolvaag.

To DFLer Al Franken, Republican Norm Coleman and those charged with figuring out which of them belongs in the Senate, the Andersen-Rolvaag experience serves as guidepost, precedent and, last week, bestower of legitimacy.

Is Coleman justified in taking his claim to a second term to the courts in an election contest? Of course, came the answer. That's what Rolvaag did.

The situations aren't quite parallel. Going to court was necessary in 1962 to trigger the hand recount that's already a done deal in 2009. The 1962 Canvassing Board lacked the clarity of today's blessedly precise election laws. It confined itself to fiddling with arithmetic -- and still needed a kick from the state Supreme Court to accept amended reports from 10 counties. The board ruled in late November that Andersen had won by 142 votes. That allowed Andersen to stay in the governor's office while Rolvaag went to court to get a recount.

"We'd been told that there was a 1 to 2 percent bias toward the Republicans among election judges" that would be found and erased in a recount, remembers then-DFL state chair George Farr. "That bias never showed up." (Didn't this year, either.)

Today, Coleman, trailing by 225 votes, is arguing that more absentee ballots should be counted. Then, Rolvaag argued that more absentee ballots should have been rejected.

"They thought absentee ballots were overwhelmingly Republican votes," recalls Tom Swain, who managed Andersen's recount effort and today is mayor of Lilydale. The judges didn't buy Rolvaag's absentee ballot argument, and upheld the work of local election judges. Watch for that precedent to figure into the Coleman-Franken case.

The 1963 recount produced an incredible 97,000 ballot challenges, compared with 6,655 this time -- belying the nostalgia about yesteryear's milder brand of politics.

"We told them to challenge anything," Swain said. "If the ballot had a flyspeck on it, challenge it. If an X only had three legs, challenge it. It was that absurd."

When the three judges were done on March 20, 1963, Rolvaag was ahead by a now-famous 91 votes. No legal trick or trump card made that happen. "He got the most votes, that's all," Swain said.

Andersen then faced a decision that will confront Coleman -- or, conceivably, Franken -- when a ruling comes in this contest. Appeal, or step aside?

Andersen stepped down. "He would have been seen as an imposter" if he had done otherwise, Swain said. That's the verdict in the court of public opinion that the loser of this year's court contest will risk if he appeals to the state or U.S. Supreme Court.

This time, there will be pressure to persist that my friend Elmer never faced. The national political parties put more stock in a Senate seat than a governor's. Some would rather pay big legal fees -- and mount baseless attacks on a state Canvassing Board or court-- simply to stave off a little longer the seating of a senator of the opposite stripe.

The national pressure on Coleman to go to court last week was "very substantial," said Norm Ornstein, a congressional scholar with the American Enterprise Institute (and a Minnesota boy who made good). "Already, both parties have used the close Minnesota election as a fundraising pretext," he noted. "They see this situation as good fundraising fodder for them."

Coleman's appeal to the courts didn't raise many eyebrows in high-minded quarters (such as this editorial page) because it wasn't seen as purely a delaying action. The recount turned up real questions about duplicate and absentee ballots that only a judicial proceeding can answer. Depending on the answers, Coleman might yet come out on top.

Election law scholar Edward Foley, who's been watching Minnesota doings closely from his professorial perch at Ohio State University, judged last week that Coleman has "a legally plausible basis for going forward." But, Foley added, "to win, you need to have both the law and the facts on your side." Coleman may find he has one but not the other.

If the three-judge panel issues a unanimous ruling, as it did in 1963, should the loser follow Elmer Andersen's lead? Is that the time to concede defeat?

Foley's answer was firm: "Yes."

Lori Sturdevant, an editorial writer and columnist, is at lsturdevant@startribune.com. She collaborated on two books with Elmer L. Andersen.

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