Thursday, January 15, 2009

Michael Stokes Paulsen: Dissembling or Just Willfully Ignorant?

One can be forgiven if, in discussing Constitutional issues, ey gloss over or misinterpret some fine point of the law. But there's a special place in Hell for people who aren't even trying to get it right. That being the case they've probably set aside a nice lake of fire for Micahel Paulsen on the basis of this morning's article in this WSJ.

Mr. Paulsen is all aflutter that Al Franken came out slightly ahead in the Minnesota recount, so he constructs this elaborate argument that the recount is unconstitutional based on the precedent of Bush v. Gore, calling it "the law of the land". The only problem is that Bush v. Gore isn't binding; one of the most notable aspects of the case is that the Supreme Court went out of its way to say that it set no precedent:

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.
Look... it's right there in black and white. Not a whole lot of ambiguity to that statement; its not really something you can miss if you're making an effort to get things right.

Which means that Paulsen, being a professor of law and all that, deserves whatever warm spot is reserved for him. Either he cited Bush v. Gore without bothering to try to understand the holding in the case or he knows the scope of the holding and is hoping that no one will call his bluff. And, while I'm at it, the WSJ gets a smack across the face with a flounder for publishing the piece to begin with.

There's also a tremendous amount of point-missing going on regarding this issue, though and the WSJ are by no means the only ones guilty of doing so. The laser-like focus on the recount and the constitutional issues and both parties' respective hordes of evil flying monkeys completely ignores the fact that, no matter how you count, the margin of victory is so small as to amount to stastistical white noise. Any notion that Al Franken (or Norm Coleman) represents the will of the People of Minnesota is just ludicrous; either gentleman, at best, represents ever-so-slightly-more-than-half of the People of Minnesota. So, no matter who wins the recount, ever-so-slightly-less-than-half of the People of Minnesota are going to get screwed.

Overly technical complaints about how some people are possibly being disenfranchised because the canvassing board made their ballots sit at the back of the bus are just so much legal/political circus. The real problem is that we a) have a first-past-the-post system that isn't actually representative and b) can't make up our minds who we like more, Norm Coleman and Al Franken.

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