Franken vs. Coleman: Minnesota's case study in election imperfection

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In the fall of 2008 I was working in the Star Tribune newsroom as government and politics editor, overseeing an able team of exhausted reporters relieved to be coming to the end of covering a hard fought U.S. Senate race between Republican incumbent Norm Coleman and Democratic challenger Al Franken.

But instead of enjoying a well-earned rest after a decisive election night, we spent the following eight months, virtually every blessed day, trying to make sense of one of the longest and most complex election disputes in American history. (Neither side meekly accepted defeat when they were behind.)

I ordinarily discuss memories of those interminable months only with mental health professionals. But I'm provoked to conjure up some recollections by the current debate over election laws, and especially by current claims, mainly from Democrats, that Minnesota's election system is downright Mary Poppins-esque — practically perfect in every way.

If so, the system has come a long way in 14 years. To be sure, the inflamed national dispute over election law isn't just about Minnesota. And it isn't only about the testy race between incumbent DFL Secretary of State Steve Simon — who thinks Minnesota elections could be improved only by being made still more open and accessible — and GOP challenger Kim Crockett, who thinks many rules should be stiffened, on early and absentee voting, voter ID and more.

I'm no election denier — I firmly if not joyfully confess that Joe Biden is my president. But I certainly am a perfection denier, and not least where it concerns Minnesota state government. Among many other episodes, 2008-09 earned me that privilege.

This very autumn, as we all watch the unfolding Feeding Our Future scandal — or should we make that "Feeding our Faces"? — or the mishandling of many millions in housing assistance grants documented last month by the legislative auditor — and with these being just the latest in what's become the state's perennial pratfalls (think of the licensing snafus, the failures of long-term care regulation, child protection tragedies, etc., etc.) — as we watch all this, are we really supposed to believe that in this one arena, elections, Minnesota's processes couldn't possibly benefit from some scrutiny?

As evidence of near flawlessness, we are routinely offered the reassuring fact that only a scanty handful of convictions for voter fraud ever occur.

Well, a good many Minnesotans are ticketed for speeding or arrested for drunken driving. But no one supposes for an instant that those tickets and arrests account for all of the speeding and tipsy driving incidents out there, or for more than a fraction of them. Some misbehaviors can only be deterred.

The better reason to believe voter fraud is rare is that there's little incentive for it. To make a difference in the vast majority of elections, fraud would have to occur on an implausible scale.

Deliberate cheating is not the main risk. Errors, confusions and inconsistencies create most hazard of votes being miscounted.

Occasionally elections are staggeringly close. In 2008-09, Franken came from behind in the recount to secure a winning margin of 312 votes out of more than 2.9 million cast — roughly one vote out of every 9,300.

Every election is a bewilderingly complicated undertaking, big and messy, involving millions of voters and thousands of locations, officials and volunteers. Mistakes and conflicting interpretations of rules are inevitable — but in the vast majority of contests the margins of victory are large enough that misfires make no difference. Still, minimizing them is a worthy goal.

Trouble is, an enthusiastic effort has been underway for years to make voting ever more convenient and undemanding, and accessible to voters facing special challenges, such as the disabled. Many of those efforts necessarily complicate the voting system and the mechanisms for validating votes — especially by greatly increasing the use of absentee or mail-in voting.

(Consider the complexity of the process just ordered by the state Supreme Court to fix the mistaken printing of a deceased legislative candidate's name on absentee ballots already sent to nearly 1,000 voters in St. Paul.)

In 2008, when a Minnesota voter still needed a special reason to vote absentee, only about 10% of total votes were cast remotely. By 2020, following the advent of "no-excuse" absentee voting, extended early voting and more, fewer than half of all votes were conventionally cast on Election Day.

And this is what stirs thoughts of 2008-09. Even then, absentee ballots — whether wrongly rejected or wrongly accepted — were the central cause of trouble.

Since we don't have eight months to endure all the details, I'll oversimplify. As the recount and courtroom contest proceeded, it became clear that officials in some Minnesota counties had strictly enforced rules regarding how voters filled out their absentee ballots and ballot applications, right down to engaging in amateur handwriting analysis to compare signatures. Meanwhile, officials in other counties had taken a more relaxed view of the requirements, enforcing only what the courts came to call a "substantial compliance" standard.

Either approach was defensible, and in most elections the variations would have made no difference. But in the absurdly close Coleman/Franken showdown it seemed like a bit of a problem that thousands of absentee ballots had been rejected in certain counties because of voter errors that had been ignored for thousands of other voters who cast absentee ballots with the very same errors in different counties.

At least, it seemed like a problem to the Coleman campaign, which by the later stages of the dispute was behind in the count.

The courts had no fully satisfying options. Thousands of ballots accepted under lenient standards had already been counted and could not be uncounted. So the only way to treat all voters the same and strictly uphold "equal protection of the law" would have been to throw out the rule book and accept all absentee ballots that met the most relaxed interpretation of the requirements.

The Minnesota Supreme Court instead chose to enforce the rules stiffly where it could, making peace with the imperfection of real-world elections.

The court wrote in its final ruling that "differences in available resources, personnel, procedures, and technology necessarily affected the procedures used by local election officials reviewing absentee ballots." But it concluded that "... unequal application [of state law] to those who are entitled to be treated alike, is not a denial of equal protection unless there is ... intentional ... discrimination."

The campaign and the court fight had been bitter, but in those somewhat less polarized times this final result was accepted. Most felt the recount and trial had been fairly conducted. On the whole Minnesota is legitimately proud of how it navigated through something like a perfect election storm.

Even so, the "unequal application [of law] to those who are entitled to be treated alike" falls well short of perfection. And the point here is that 2008 showed how the complexities of a mail-in voting system increase risks of unfairness among voters when an election becomes abnormally close.

Minnesota made improvements in its absentee/mail-in ballot procedures following the 2008 ordeal. But other innovations may have produced new hazards.

Let's just not be too quick to assume everything is ideal and every criticism is an assault on democracy.