At least for one week, the five members of the state Canvassing Board may have the most undesirable jobs in Minnesota. Regardless of the decisions they make, a good share of their fellow citizens will find cause for criticism. So let me offer some unsolicited advice from one who has been in their shoes. The most important principle for the Canvassing Board and courts is to follow a single set of objective standards.
In 2004, I was asked to hear the recount of a state Senate race in Mower County. While the stakes obviously were much smaller than in this year's U.S. Senate recount, the issues were no less complicated.
The difficulty of making the right call on all the issues involved in a recount is the rarity of recounts. There simply isn't a lot of precedent to help the Canvassing Board and, one presumes, ultimately the courts in their decisions.
But there are parallels, including one that relates to the 133 ballots allegedly missing from a Minneapolis precinct.
I also was called upon in 2004 to rule on missing ballots. In fact, in my case, the issue may have been more clear-cut. We knew that 17 ballots had been destroyed by fire. In Minneapolis, an exhaustive search failed to produce any evidence that the missing ballots ever existed. The Minneapolis issue is a conflict between the count on the precinct's voting machines and the hard evidence of ballots.
In the Mower County case, I ruled that if a ballot doesn't exist, the vote doesn't count. My decision did not set a binding legal precedent. The standards of law, though, dictate that a body overruling my decision must provide an explanation. Without imposing my judgment on anyone, it might be helpful for those now considering what to do with missing ballots if I share the two critical factors in my decision.
The first and more important point goes to the heart of a recount. A recount is conducted so that every ballot can be examined and an accurate total tallied from hard evidence. Vote totals should not be imputed from mechanical or mathematical probabilities; they should be based exclusively on ballots.
That already is the case when the flip side of the Minneapolis situation occurs. When voting machines record fewer votes than there are ballots, we ask election judges, the Canvassing Boards and, ultimately, the courts to look at the hard evidence — the ballots themselves. The standard should be no less rigorous when the existence of the ballots themselves is in question.
