No offense to Mr. Paulsen, but his complaints are disingenuous.

All counties conducted a uniform recount -- that some counties found ballots and others discovered that some that had previously been counted were subsequently misplaced (necessitating the reconstruction of their tally) is beside the point. In his view, would any recount ever be valid if it ever changed anyone's total?

Similarly, the December 18 decision, while goofy and arguably wrongly decided, only applied to the canvassing board's recount and does not prejudice any voter's (or candidate's) court challenge.

Also, Paulsen's statement "All told, the recount in 25 precincts ended up producing more votes than voters who signed in that day" remains an enduring but unfounded myth that the Wall Street Journal editorial page is fond of repeating. There is no evidence that it happened, and Coleman has not even so much as alluded to it in any of his court filings.
 

538.com has covered the MN recount in great detail, and has already debunked several WSJ claims about the recount. Paulsen should have read their coverage before he submitted this drivel.
 

In addition, Scott Lemieux from LGM deals with Mr. Paulsen's misreading of Bush v. Gore.

The stupid, it burns...
 

There's no reason to take seriously anything Prof. Paulsen says. He's demonstrated here on several occasions that his partisan bias overwhelms any commitment to accuracy.
 

The WSJ piece claims that "media counts confirmed that Bush won anyway, under any uniform standard."

This is both false and misleading, given that the non-media-based review found more votes for Gore under any uniform standard.
 

So much misinformation, so little time...

Phil: The application of Minn voting law was not uniform. As Prof. Paulson pointed out, the canvassing board went by the machine tally in one precinct and declined to do so in another precinct, both times finding more votes in Mr. Franken's favor. There are more examples of non-uniform application of the law covered extensively on various blawgs.

Nate: Lemieux either did not read the Bush v. Gore final opinion or is lying. Seven justices found that Florida's free for all violated the EPC, but broke down on the remedy with five justices voting to close down the selective Dem recount while two wanted to give the Florida Supremes a third chance to get it right.

The 7-2 decision finding the EPC violation is the part of the decision to which Prof. Paulson was correctly referring. However, Sen. Coleman does not need to rely upon Bush v. Gore. There is a long string of similar precedent ruling against similar schemes to rig vote counting along racial lines in the South.

Steve: Your link to an unidentified vote recount tally is un-cited and under challenge over at wikipedia. Under the two corner legal standard used by the Sec State, the accounting firm hired by the media consortium to recount the ballots found a Bush victory. Bush won, get over it.

The real threshold question in the recount is whether Coleman can win even if the irregularities to which he cites are resolved in his favor. It does not appear that Prof. Paulson is making this argument, but rather is urging a second election on the grounds that the election is so close. If Coleman cannot win even with a fair recount, then he should simply concede and spare everyone the drama.
 

Funny how finding more votes in a recount than were recorded on Election Day (which is one of the main goals of a recount) gets distorted into “more votes than voters who signed in that day” or even “more votes than registered voters”.

As for finding a conspiracy in the correction of transcription errors, how can anyone rebut that?

Unless a single individual counts every vote, one could always argue that an inconsistent standard was used. As it was, every ballot was examined by an election judge and representatives of the Coleman and Franken campaigns. If either side disagreed with the ruling of the election judge, the ballot was sent to a bipartisan committee to adjudicate. So, any ballot that there was any doubt about was ruled on by a single committee. That is a consistent standard.

The Minnesota Supreme Court made a mistake letting the two campaigns have a say in which previously rejected absentee ballots would be counted. But Coleman agreed to it, and now his remedy would be to count only the uncounted absentee ballots that he believes would favor him. Franken can undoubtedly come up with a similar number that he thinks would favor him.

As for the idea of not counting the 133 missing ballots from Hennepin County, what would Mr. Paulsen suggest? The point of a recount is to get the most accurate count possible. We know the ballots existed. Which would be more accurate: to use the machine totals on those 133 votes, or eliminate them entirely?

I assume that these votes were lost accidentally. But if the were not, who would benefit from them not being counted? Would it be fair to punish Franken for something that is either an accident or a dirty trick by a Coleman supporter?

From the beginning, Mr. Franken has been urging that all the legal votes be counted. At the same time, Mr. Coleman has been suggesting that the recount be waived or that votes not be counted. I just wonder if Mr. Paulsen would be suggesting a “do-over” if Ex-Senator Coleman had been the one leading at this stage of the contest.

It has to suck and hurt a lot to lose an election this close. But if it had come out the other way, it would still suck and hurt, just for different people. Minnesota has, contrary to Mr. Paulsen’s assertions, run a transparent and fair recount. Someone has to lose. In this case, it is Coleman.
 

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[Michael Stokes Paulsen]: By a vote of 7-2, Bush v. Gore (2000) ruled that Florida's recount violated the principle that all votes must be treated uniformly. [...] Florida's lack of standards produced "unequal evaluation of ballots in several respects."

This is an interesting claim ... considering that the vote counting that was halted on a motion for preliminary injunction on order of the SCOTUS and then permanently enjoined never happened. Describing the factual characteristics of an event that never occurred is usually beyond the mien of even the most gifted psychics, and usually not a task for Supreme Court judges.

Cheers,
 

[Michael Stokes Paulsen]: This is Florida 2000 all over again, but with colder weather. Like that fiasco, Minnesota's muck of a process violates the Equal Protection Clause of the U.S. Constitution.

The U.S. Supreme Court decision in Dubya v. Gore 'violated' the equal protection guarantee more than any recounts would have. In ordering a stop to the statewide recount, the SCOTUS ensured that the ballots in the various different counties in Florida would be counted under different standards. The "equal protection" rationale the anonymous per curiam in Dubya v. Gore was manufactured out of thin air for one result and one result only ... and was so transparent they had to lie about what the dissents said to try and prop up their shaky opinion with manufactured consensus.

Note for Paulsen here: The "vote of 7-2" is a lie. It never occurred.

Cheers,
 

davidsdad01Stokes has written something in the WSJ only an asshat would write - or someone writing a piece of satire to be delivered by the star of the Colbert Report.

Did I miss an announcement that the WSJ has taken up a policy of publishing satire without any labels indicating when?

Or are the facts that Stokes has posted here - implying he's welcome to again - and next Tuesday's inaugural connected? In other words, is this blog about to become a regular host of asshats?

I need to know the answers to these questions, because Balkinization has taken up a spot on my toolbar for several years now, and if the answer to the first is "no" and to the second is "yes", then there's a lot of other blogs that post pieces written by asshats and most of those are more tolerable for making no bones about it.
 

Resolution of disputed Senate elections is clearly vested by the U.S. Constitution in the U.S. Senate, a privilege that the body has exercised numerous time in its history, including numerous clearly partisan exercises of the power after the adoption of the 14th Amendment.

Part of the justification for Bush v. Gore (IMHO wrongly decided and by its terms non-precedential), was that there was no other body in as good a position to resolve a time sensitive election dispute of national importance in the Presidential election. This analysis does not apply to a disputed Senate race.
 

Assuming Bush is controlling as Paulsen argues, Minnesota's recount only runs afoul in how the absentee ballots were handled. Everything else applied a consistent standard of using the manual recount unless there was strong evidence to do otherwise.

Hennipen had that strong evidence, using the machine tally because the enevelope of ballots labeled "1 of 5" was missing, whereas enevelopes "2 of 5" through "5 of 5" were found. Moreover, the number of voters who signed the roles was 133 greater than the number of ballots found in envelopes 2 through 5.
 

What exactly is "suspicious" about the alleged "different treatment" here? That Franken won?

The word implies foul play, which is interesting given the election judges involved was in no way stacked Democrat or anything. But, note the conspiracy words like that votes were "found" (his scare quotes).

The whole point of recounts is in part to ensure certain votes were not missed. As Prof. Paulsen notes "You would think people would learn." This includes not letting hysteria cloud judgment, including comparing MN to Florida, the former a drawn out affair much more fair.

Recounts are human affairs so are in some fashion "arbitrary," but so are any actions by humans. His leanings and locale might make him think this one is somehow unique, but as with those who seemed to think electoral litigation was illegitimate in 2000, this is mistaken.

Likewise, it doesn't impress when law professors say b.s. like "By a vote of 7-2." This is from the plurality's opinion that "Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy."

Yes, four of them thought the "remedy" was to keep the U.S. Supreme Court from interfering. I'd add the curiously ignored fact that Justice Breyer concurred in full with Stevens dissent along with Ginsburg.

The only thing "2" justices alone concurred with is a portion of Justice Ginsburg's dissent, and even there, she cites the "dissents" (sic) of Souter and Breyer.

The fact the Court there by its own words tried to keep the ruling from being precedent has rightly been criticized as illegitimate. But, given how poorly so many actually interpret the ruling, it is not totally ill advised.
 

Bart-

Read the post, follow the links, review the count results. The statement in question is clearly false.

There's plenty that transpires here on which there is room for disagreement. This is not such a case.
 

Dude, you are talking to Bart.
 

It seems to me that the equal protection part of Bush v. Gore is pretty silly, notwithstanding the fact that seven justices supported it. The only justifiable reason for federal intervention in the Florida recount was not that individual voters were somehow discriminated against because of inconsistent and/or arbitrary recount standards. It was that the Florida courts, by making up new rules and standards for recounts as they went along, were effectively arrogating to themselves the power to determine who the next president of the United States would be.

Professor Paulsen may or may not be correct that the equal protection standards of Bush v. Gore were technically violated by the Minnesota recount. But he is certainly wrong to suggest that the Constitution requires a do-over just because the election was so close that there is no objective way of determining who “really” won. Such a do-over might be a good policy approach, but it is not constitutionally required.

Finally, Andrew Oh-Willeke makes an important point when he notes that in this case, unlike Bush v. Gore, the Constitution expressly identifies who the ultimate judge of the election will be. It is the US Senate, not the federal courts.
 

It was that the Florida courts, by making up new rules and standards for recounts as they went along

More arrant nonsense. The FL courts simply applied long-standing principles in a novel and difficult situation, one made more difficult by the first SCOTUS intervention.
 

“The FL courts simply applied long-standing principles in a novel and difficult situation, one made more difficult by the first SCOTUS intervention.”

The problem with that statement is that is essentially meaningless. I could say the same thing about the Bush v. Gore majority. They applied long-standing equal protection principles in a novel and difficult situation. So what? The fact is that the “long-standing principles” applied by the Florida courts were vague enough that they allowed the courts to pretty much come up with any result they wanted, which is why the judges themselves disagreed vigorously on how they should be applied in the situation before them. I recognize that this is not unusual, nor does it mean that the judges were acting in bad faith. But the end result was still to leave the selection of the president effectively up to the Florida courts, which is what SCOTUS was trying to prevent when it (unanimously) intervened the first time.
 

"It seems to me that the equal protection part of Bush v. Gore is pretty silly, notwithstanding the fact that seven justices supported it."

Interestingly, four justices dissented. They didn't say "in part" as in what "part" did the seven "support?"
 

But the end result was still to leave the selection of the president effectively up to the Florida courts

The end result was that the votes would have been counted. The votes, not the courts, would have decided the issue. And, as we now know, if the votes had been counted according to Gore's request, Bush would have won (Bush would have lost under other scenarios).

I could say the same thing about the Bush v. Gore majority. They applied long-standing equal protection principles in a novel and difficult situation.

Yes, but they did so in a way that was intellectually dishonest, as pretty much everyone, on both sides of the spectrum, agrees.

The sad fact is, the FL Supreme Court did its job. The SCOTUS failed.
 

unlike Bush v. Gore, the Constitution expressly identifies who the ultimate judge of the election will be. It is the US Senate, not the federal courts

The fact the Senate "judges" the "returns" etc. is not necessarily anymore conclusive than the fact it "judges" the "qualifications." If the courts, with cause, found the latter not totally up to them, it is unclear if the former is.

Likewise, see Breyer's dissent (sic), it is quite arguable that the ultimate judge of the electoral vote "count" should be -- per Art. II and the 12A -- the Congress.

The only justifiable reason for federal intervention in the Florida recount was not that individual voters were somehow discriminated against because of inconsistent and/or arbitrary recount standards.

Actually, to the degree many (particularly ones of immediate focus of the 15A) WERE being discriminated against, federal intervention might have been warranted. Likewise, if there actually was some blatant recount wrongdoing, intervention MIGHT have been warranted.

At least, more than what actually transpired.
 

SteveL said... There's plenty that transpires here on which there is room for disagreement. This is not such a case.

Anderson said... Dude, you are talking to Bart.

Anderson wins again.
 

Mark- if you believe that resolving extremely close elections is a matter of “counting every vote,” you are letting your rhetoric overwhelm your reason. As Professor Paulsen describes it, the issues that have arisen in Minnesota include discrepancies between the hand count and the machine count, discrepancies between the recount and the number of registered voters who were recorded as appearing on election day, and questions about whether to count absentee ballots. Marc Ambinder explains “there were different standards used by different counties to reject absentee ballots. This tranche of ballots adds up to about 12,000 votes. Between a third and a fifth of ballots either shouldn't have been counted - or should have, but weren't.” There is also an issue of double counting—some precincts apparently prepared duplicates of mangled ballots in order to run them through the machines, but forgot to properly mark them to avoid double counting. In addition, I assume that there are the usual assortment of questions about spoiled ballots, voters who registered or showed up at the wrong place, etc.

In order for the recount to improve upon the results of the initial count, it is not enough that it count more votes. It must be more accurate in measuring the relative preferences of voters than the original count. This seems like a very difficult thing to accomplish, even assuming complete good faith on the part of the officials conducting the recount, given all of the opportunities for the recount to have a disparate impact on the two campaigns. For example, one of the reasons that Franken apparently came out ahead in the recount is that his campaign did a better job in identifying using the recount procedures to his advantage. There is nothing particularly inappropriate or unfair about that, but it suggests that the recount provides no better, and perhaps even less, assurance of identifying the “correct” winner than the initial count.

The fact is that in an election this close there is no objective way of assuring that the winner actually received more votes. If this really bothers you, you should be in favor of the do-over proposed by Professor Paulsen. Otherwise, you should recognize the reality that every election has a margin of error and if the result is within that margin of error, a recount is only marginally better than a coin flip. The danger is that if the coin flippers are not entirely neutral, they will keep flipping until they get the result they want. This is a tolerable risk in a congressional election, but not in a presidential election, which is why SCOTUS intervened in 2000.
 

mls, you should go visit 538.com. Franken is going to win because he got more votes. Period.
 

Bartbuster- I went to 538.com and I am afraid I was unable to locate whatever it is you are referring to. If you would like to give me a more precise cite, I would be happy to look at it. Meanwhile, you should read Marc Ambinder's post in the Atlantic.

Given that several million people voted, Coleman was ahead by a few hundred votes after the initial count, and Franken is ahead by 225 votes after the recount, I don't see how anyone can confidently declare that "Franken got more votes, period." This is a bit like saying if the census shows that State A has 2,000,000 people and State B has 2,000,225 people, "State B has more people, period."
 

As to the 538 site, fwiw, when I clicked on various links my McAfee site advisor noted:

"When we visited this site, we found that it uses many affiliated sites which attempt to change a user's homepage to its own page of paid advertising links."

Anyway, a more specific link would be useful.
 

Here's a link to Nate Silver's analyses.

The bottom lines:

1. The burden of proof is now on the Coleman campaign.
2. The recount, which was mandated by MN law, was conducted with unprecedented openness -- and there was no display of any of the bias or favoritism alleged by Coleman. He apparently hopes, through aggressive discovery, to find a pony in the pile he's been handed, but his chances are somewhere between nil and slim.
3. If there were any real evidence of any of the problems alluded to by Paulson (and regurgitated in a multiplication of hearsay for us here by MLS) they wouldn't be trying to make the case in public -- they'd save it for the trial.
4. It appears that the goal of the Coleman challenge is only as a distant hope to win the election -- the primary goal seems now to be to discredit Franken's election, thereby making him less effective and less likely to be re-elected.

Joe: I've surfed 538.com many times and have never had even a warning of my home page being re-directed. (Linux, Firefox 3.0.5.)
 

In order for the recount to improve upon the results of the initial count, it is not enough that it count more votes. It must be more accurate in measuring the relative preferences of voters than the original count.

Recounts are mandated by law under specified conditions, which were met in both FL and MN. Unless your argument is that recounts are unconstitutional, your claim about accuracy is meaningless.

I fully understand that close elections are difficult to resolve. That is not an argument for failing to try. In FL 2000, the SCOTUS refused to try. That's inexcusable. Taking that position on dishonest grounds made it all the worse.
 

I looked at Silver’s posts. He is contending that the recount was fair and unbiased (in the political sense), which I have not in any way disputed. He is not contending, as far as I can tell, that the recount is unbiased in the statistical sense. For example, he acknowledges that Franken’s lead may be the result of better lawyering on his campaign’s part, which is one of the points that I made.

Silver’s most recent post comments on Ambinder’s piece, and suggests that Ambinder may be “too credulous” in accepting claims by the Coleman campaign. He doesn’t specifically respond to any of Ambinder’s points, though, so it is difficult to evaluate that assertion. Overall, though, I am not sure that Silver would disagree with the thrust of Ambinder’s post, which is that the recount process involves a series of discretionary judgments that can’t be said to improve the accuracy of the count (keeping in mind that it is the relative count between the candidates that matters—thus a decision that correctly counts one vote for Candidate A and incorrectly fails to count a vote for Candidate B is actually worse than a decision that incorrectly fails to count either vote). That is why I have analogized them to coin flips.

Just to be clear, I have no problem with the Minnesota election process. As far as I know, the recount was completely fair, and I assume that the election contest will be as well. Whoever is certified after the contest should be seated, absent some extraordinary development. I just don’t believe that there is any assurance that the recount or the contest will be any more (or less) accurate than the initial count. That’s just the reality of really close elections.
 

I just don’t believe that there is any assurance that the recount or the contest will be any more (or less) accurate than the initial count.

# posted by mls : 11:35 AM

So you believe that the concept of a recount is completely bogus? Do you know if there are any states that agree with you (ie. states that ban recounts)?
 

C2H50H, I also use Firefox, and my McAfee software gave me that warning. The site report overall was still favorable. To the degree that it was incorrect or most links are fine, well, I didn't explore the point.
 

So you believe that the concept of a recount is completely bogus?

Not completely bogus. A recount can reveal actual fraud in the initial count. But in terms of mere accuracy, yes, it's bogus as a concept. There's some weird belief that a second count is somehow more accurate than a first one, but that doesn't make any sense. To the extent that the inaccuracy is merely the result of error, then there's no more reason to think a second count will be error free than the first.

Now, if you want to do best-two-out-of-three, you might have something useful, but nobody actually supports that, I don't believe.
 

"some weird belief that a second count is somehow more accurate than a first one, but that doesn't make any sense"

The "second count" generally isn't done the same way under the same conditions as the first. So, it makes "some" sense to think it can be more accurate.
 

@David Nieporent,

I think the recount is clearly more accurate than the initial counts. So far the recount has uncovered 171 ballots in Ramsey that were not counted in the initial counts, 61 ballots in Becker that were not counted in the inital counts,(heavily Coleman BTW, so nobody seems to mention these when talk surfaces about 'found' votes), 1350 absentee ballots that were improperly rejected by the local election officials, voting machines in St Louis that weren't working properly resulting in perhaps 100 or so ballots that were not counted, and many miscellaneous ballots where the voter clearly expressed intent but the result was not interpreted correctly by the voting machine. I agree that the margin for Franken after the recount may be smaller than the margin of error, but how can you claim that the recount numbers are not more accurate than the initial machine counts?
 

To the extent that the inaccuracy is merely the result of error, then there's no more reason to think a second count will be error free than the first.

Actually, I would expect that a recount would be much more accurate. Each ballot can be checked carefully to make sure it was counted correctly, and questionable ballots can be studied by representatives from each side.