Minnesota Recount Comedy of Errors

As Michael Stokes Paulsen, a professor of law at the University of St. Thomas in Minneapolis wrote in The Wall Street Journal, there is a lot in the recount affair to concern us. Franken has exploited a weakness in almost every state's recount process.

Recounts, Paulsen observes, must not violate the 14th Amendment, which provides that "no state shall...deny to any person within its jurisdiction the equal protection of the laws." The Constitution suggests it is a matter of some importance that votes be counted uniformly in a democracy.

The Supreme Court's "Bush v. Gore" 2000 decision reaffirmed the equal protection clause: Ballots in one precinct or county must not be evaluated differently than those in others.

Recounts, however, are conducted locally, with individual precincts and counties interpreting state election laws. The result in Minnesota is a crazy quilt of newly evolved standards that, in fact, have become no standards at all -- and are constitutionally unacceptable. All votes are meant to get equal protection in Minnesota, but Franken's votes are getting more equal protection than Coleman's.

In some parts of the state, as a Wall Street Journal editorial observed, recount officials have accepted Franken votes tallied on election night, even when the physical ballots were nowhere to be found for the recount.

Let's say, through error or design, some overly enthusiastic election night official fed Franken votes through a voting machine twice: In some parts of Minnesota, Franken kept those votes, even though they could not be re-tallied.

In other jurisdictions, the election night tally was thrown out and Franken got to include votes he didn't have election night but his team subsequently discovered. Availing himself of dissimilar standards in different parts of the state, Franken got to pick which benefited him the most, the election-day tally or the recount.

In some localities, Franken's campaign has even been allowed to double-count ballots. If a legitimate ballot is damaged and cannot be mechanically counted, Minnesota law allows election officials to create and count a duplicate, as long as the original is marked and both ballots are stapled together.

The Wall Street Journal contends that 80 to 100 original and duplicate ballots were separated and counted individually in the recount. Even if this were Illinois, such electoral imagineering is unlawful. - CNN Commentary