Article published Monday, December 22, 2008, at Fox News.

Ballot Madness: Tipping the Scales in Minnesota's Senate Recount

By John R. Lott, Jr. and Ryan S. Lott

The Canvassing Board overseeing the vote recount for Minnesota’s tightly contested US Senate race isn’t quite done examining disputed ballots, but using their numbers the Minneapolis Star Tribune issued a projection Saturday night that Al Franken would pick up 270 votes when the board finished examining the ballots. Currently the board is determining voter intent in disputed ballots. If the project proves correct, Franken will beat incumbent Senator Norm Coleman by 78 votes.

Vote totals have changed a lot since November 4th when Coleman lead Franken by 725 votes. Correcting typos cut Coleman’s margin to 215, and a recount by all the counties reduced it further to 192. Yet, the additional 270 votes picked up by Franken from the Canvassing Board’s decisions have been among the most controversial.

The vote pickup has occurred through two actions by the board – divining voter intent and determining what votes should be counted. While decisions to include missing or overlooked ballots has gotten the most attention, the process of determining intent has also been important in determining the outcome here.

The Canvassing Board faces a difficult task in divining voter intentions. It is very difficult to determine how a voter meant to vote simply by looking at what might be stray marks on the ballot. And whatever rules are adopted must be consistently used in evaluating all ballots.

What to do when voters change their minds at the last moment or accidentally fill in the wrong oval? In such a case, the voters are supposed to ask for a new clean ballot. But the board presumes that some voters who change their minds simply put an “X” through the blacked-out oval. Even if the voter doesn’t blacken an oval for another candidate, an “X” through an oval is interpreted as the voter changing his mind. There is a claimed exception to this rule: if all the votes for each candidate that a voter supports are simultaneously marked by both filling in the oval and an “X,” voters are assumed to support those candidates.

The primary problem isn’t the rules. The real problem is the lack of consistency. Take some of the ballots that only marked the oval for Coleman, but where the oval is also marked through with an “X.” The Canvassing Board determined that those marks meant those voters intended to support “other/no one.” Here are a couple of examples with more here.

Yet, there are a number of cases where the exact same markings for Franken were decided by the Canvassing Board to result in votes for Franken. More can be found here.

But to make the case even more strange, given this rule, what should the board decide when the oval is filled in for Coleman, but the Franken space is marked with an “X”? The board ruled that the vote is for Franken.

Nor can Coleman even win when there is an oval filled in for Coleman and the Constitution Party candidate receives an “X.” In that case, the board determined the support went to “other/no one.”

But if you have an oval filled in for Franken and the Independence Party candidate receives an oval with an “X,” the vote is given to Franken.

There are other cases where the ballots are clearly marked for Coleman, though the marks were relatively small, and the board awarded the votes to no one.

There are still other cases where it is hard to see how the board could legitimately declare certain votes for Franken. For example, a voter filled out neither the oval for Coleman nor for Franken, but colored in the area in between the two candidates. Part of the blob touches the edge of Coleman’s oval and one thin line goes slightly into Franken’s oval, and for 28 other races on the ballot the voter seems to have been able to fill out the required ovals – there is only one other case where he missed. Perhaps the board saw that the voter was voting for other Democrats and used that to help influence its decision, but there were a number of Democrats who voted for Obama and other Democrats, but not Franken.

Still the most obvious classification would have been not for Franken, but for “no one,” what most readers of the Minneapolis Star Tribune thought was the right answer.

Mistakes were also made against Franken, but they were much less common.

The Canvassing Board has made a number of other controversial decisions. For example, ten days ago, news headlines proclaimed “Franken Wins Big at Canvassing Board.” One decision, to count 133 so-called “missing” ballots in Minneapolis’ Ward 3, precinct 1, immediately gave Franken an extra 46 more votes than Coleman. By itself, that decision by itself gives Franken most of his projected winning margin.

There has been much arbitrariness over whether to count newly found votes. Compare these 133 additional votes to the 171 votes that were found in Ramsey County’s Maplewood Precinct 6. In Precinct 6, Franken argued that the original vote total had missed the 171 votes because the voting machine was initially not working and the 171 were not rerun through the new machine that replaced the original defective one. However, Republicans were concerned that the newly “found” ballots might not have been really cast on Election Day.

Since the recount showed that there were 171 more ballots than recorded votes, the decision was to add in the ballots, giving Franken a net gain of 37 votes.

Contrast this to the 133 ballots in Minneapolis. The 133-vote problem arose because more votes were recorded on Election Day than were found when the recount was conducted. The initial explanation was that the ballots must have been accidentally run through the voting machine twice – that no votes were missing, but that 133 had just been accidentally counted twice. The Canvassing Board however decided not to rely on the recount and instead on the original machine totals.

The only commonality in these two decisions was that the outcome benefited Franken. When the recount is in Franken’s favor that is used. When the original machine tally works best that is used.

Ignoring the questions with correcting the typos and discovered ballots in an election judge’s car, the Canvassing Board’s decisions have easily supplied more than the 78 vote lead that the board projects Franken to end up with. Yet, the Canvassing Board’s choices will leave long lasting questions about the legitimacy of any win.

*John Lott is the author of Freedomnomics and a senior research scientist at the University of Maryland. Ryan Lott is a Junior at Mary Washington University.

Home (description of book, downloadable data sets, and discussions of previous controversies)

Academic papers:

Social Science Research Network

Book Reviews:

For a list of book reviews on The Bias Against Guns, click here.

List of my Op-eds

Posts by topic

Appalachian law school attack

Baghdad murder rate

Arming Pilots

Fraudulent website pretending to be run by me

The Merced Pitchfork Killings and Vin Suprynowicz's quote

Ayres and Donohue

Stanford Law Review

Mother Jones article


Craig Newmark

Eric Rasmusen

William Sjostrom

Dr. T's

Interview with National Review Online

Lyonette Louis-Jacques's page on Firearms Regulation Worldwide

The End of Myth: An Interview with Dr. John Lott

Cold Comfort, Economist John Lott discusses the benefits of guns--and the hazards of pointing them out.

An interview with John R. Lott, Jr. author of More Guns, Less Crime: Understanding Crime and Gun Control Laws

Some data not found at

Updated Media Analysis of Appalachian Law School Attack

Since the first news search was done additional news stories have been added to Nexis:

There are thus now 218 unique stories, and a total of 294 stories counting duplicates (the stories in yellow were duplicates): Excel file for general overview and specific stories. Explicit mentions of defensive gun use increase from 2 to 3 now.

Journal of Legal Studies paper on spoiled ballots during the 2000 Presidential Election

Data set from USA Today, STATA 7.0 data set

"Do" File for some of the basic regressions from the paper