Joe Quinn’s op-ed in today’s Strib is a perfect illustration of what happens when people think things through thoroughly. Here’s what Mr. quinn wrote that caught my attention:

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.

This opinion wouldn’t sit well with teh Franken campaign but that’s something that they’ll have to deal with. Of course, a painstaking search must be done to see if ballots got misplaced. If, after that painstaking search, there’s still a discrepancy between the number of physical ballots and the statistics on the machine’s tape, then it must be resolved on the basis of physical ballots because a machine’s tape can’t be verified.

It’s possible that the ballots were actually cast. It’s also quite possible that the ballots didn’t and that the scanning machine simply made a mistake. Without physical proof, we can only theorize. When criminal cases are decided, they’re theoretically decided on the basis of whether there’s reasonable doubt. When civil cases are decided, they’re decided on the basis of a preponderance of evidence.

Without proof of the ballots’ existence, there’s only reasonable doubt, which means that there isn’t a preponderance of evidence.

The second principle I followed is that recounts should minimize the risk of political mischief, not provide it a safe harbor. The Senate recount to date has demonstrated the integrity of Minnesota’s elections. After counting 2.9 million ballots, we are left with little more than a handful of question marks. The best and only reliable evidence of a person’s vote is the ballot itself.

What’s most interesting to me is that Judge Quinn isn’t a partisan GOP jurist. He’s a former DFL legislator. I point this out to highlight the fact that irrefutable logic is irrefutable logic wherever it’s found.

Judge Quinn used simple logic that ballots are the only physical proof that votes were cast. Without the physical ballots, you’re dealing with phantoms. That isn’t acceptable.

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3 Responses to “Clear Thinking on Recounts”

  • eric z. says:

    This reminds me of the question of statistically adjusting census data to make the final result more reliable, with some opposed to the idea. Ludditeism, perhaps.

  • Freealonzo says:

    Judge Quinn does make some good points, hard to argue against his thinking.

    I just want to point out however, that there is almost no doubt that those 133 votes in Dinkytown were cast and then lost.

    The ballots in that precinct were put into 5 separate envelopes each identified as 1 of 5, 2 of 5, etc.

    Envelope 3 of 5 (I think it was 3) is nowhere to be found.

    One can make a strong argument that since those votes can’t be found they can’t be recounted. However one cannot argue that those 133 votes were never cast. Small distinction I know but an important one.

  • Gary Gross says:

    Those vote might’ve been cast but we don’t have PROOF that they were cast. Without irrefutable physical proof, I don’t trust anything.

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