27 April 2009

Coleman or Franken?

In the Minnesota recount battle, Al Franken has repeatedly gotten the upper hand. According to a Star Tribune poll published today, Minnesotans are fed up with Norm Coleman's quest to overturn Franken's lead. The Minneapolis paper headlines that "Most Want Coleman to Quit" and cite results from their recent telephone poll which shows 64% of all respondents want Coleman to throw in the towel. Only 28% believe Coleman's appeal to the Minnesota Supreme Court is justified.

So, should Coleman give up?

No. And there are better reasons apart from the fact that Al Franken is a disgrace to Minnesota (consider the fact that he once threw a chair at talkshow host Michael Medved in a fit of rage). The Star Tribune has painted itself into a corner as well, having endorsed Coleman over Franken. Now the newspaper finds itself with an apparent majority of Minnesotans rooting for Al Franken.

But there are two arguments that lead me to opine that Coleman ought to continue his appeal. First, the so-called opinion poll seems a little heavily tilted toward Democrats. If you read the fine print in the article, you'll see that of the 1,042 respondents 20 percent were Republicans and 36 percent Democrats. Or almost double the number of registered Democrats over Republicans in a poll on an election issue in which the Democrat and the Republican candidate received virtually even results. Once you control for this curious flaw in the poll, the 28-64% division shrinks closer to a 40-50% distribution. Such a result would have represented more fairly the mood in Minnesota: We're sick and tired of this recount, but we'll live with it a little longer, even if we have to grind our teeth. After this long of a process some discontent with the situation is normal, but I do not believe that 64% of Minnesotans want Coleman to quit. The Star Tribune can argue that one cannot control exactly for party affiliation, but on such a topic that argument sounds very weak. A perfect parallel to Minnesota's party affiliation is probably not possible but a 20-36% spread is a little extreme.

Secondly, the legal arguments that Coleman has raised are not trivial. Just to be clear, Mr Coleman is not alleging that Al Franken or the Democratic Party cheated during this election. Rather, his objections are to the vote counting process which he claims was not fair and equal. Different standards for approving absentee ballots were applied in different counties and it so happens that heavily Democratic-leaning counties were a lot less strict in applying these standards than Republican-leaning counties. As a result, the Republican counties rejected a lot more absentee ballots (and thus, by implication, a lot more Republican votes) than the Democratic counties, which were generally lenient in allowing absentee ballots (and thus, again by the logic of statistics, increased the overall Democratic count in proportion to their representation in that county).

The upshot is that Republican votes were more usually rejected than Democratic votes. Coleman wants the courts to consider his argument that this is a violation of federal equal protection principles. So far, no court has done so; all previous rulings were very limited in scope and specifically excluded any consideration based on this argument. The courts have yet to rule on this basic question. Coleman has every right to appeal. Not only that, if he can provide overwhelming evidence of this situation, then the state of Minnesota needs to rethink its election laws because it implies a systemic unintentional bias in favor of Democratic candidates. Coleman's appeal might well be the catalyst to make elections in Minnesota fairer.

Does that mean the appeals should go on forever? Surely, at some point Coleman ought to give up? True. And the same goes for Al Franken, if at some point the odds get reversed. But let us not be hasty. Appeals are unlikely to drag on for years. The state Supreme Court will hear arguments early June and by mid-summer there will likely be a verdict. This court will not be able to skirt Coleman's constitutional objections as the district court did and so it is highly likely that there will be a different outcome. There are good chances that by the summer there will be an end to this situation. Such a timeline seems a reasonable situation to accept in face of the importance to American democracy.

But even if there is no substantial change at the state level, I would like to judge any hypothetical further appeals to the federal courts on their own merits. I am not of the opinion that Al Franken should be kept out of the Senat at all costs. He can only do so much harm among so many other hard-left senators. Still, I don't mind admitting that I am not against a little more patience before we certify Mr. Franken.