I quite disagree with this newspaper's editorial position that State Sen. Grace Schwab and the state Republican party should roll over and concede the election to the Democrat challenger, Dan Sparks. The vote for the state senate from our district should be tested to the full extent of law and itself tested by full judicial scrutiny until the will of the voters has been detected as accurately as possible.

The Herald evidences no bias in this position, and I can't fault its concern for immediate representation for this district, but I submit other considerations out-weigh it.

Until this matter is settled, I suggest Schwab and Sparks share what is now her office and staff and both audit senate sessions from the gallery and committee meetings with no voice or vote. Each would also audit respective party caucuses.

It seems to me the most important reasons for hammering this out is the rule of law and common fairness.

The canvassing board's having apportioned contested ballots even after Sparks' attorney withdrew his challenge puzzles.

More seriously, I have strong feelings about the ethics of counting destroyed ballots, and I suggest this is rather much the crux of the conflict.

Seventeen ballots were not seen -- much less examined -- by the board, because they are not extant. It is reported, even this without documentation, that these ballots from one Austin precinct had been marked for the deceased Paul Wellstone for the U.S. Senate. This is all that is known about them, and nothing is known about votes for any other office.

We are obliged to accept it that the results of all other contests would be unaffected by seeing them because the margins were greater than 17. Even this is disturbing.

Presuming people who voted for a Democrat for a U.S. Senate would necessarily vote for the Democrat running for the state senate, as the canvassing board presumes, is not without reason. One can reason this way without being either irresponsible or biased. However, it is far from certain. It is more reasonable to presume a person voting for a Democrat state senator (which, in these cases, is the unknown) would also vote for a Democrat nationally than this reverse presumption. I can think of many reasons individuals would vote for the incumbent Grace Schwab even though they voted for the dead Paul Wellstone. They are more likely to know her and be familiar with her work. Also, party loyalty is stronger on the national level, and departures from the party line more common locally.

If the canvassing board was to presume Wellstone votes equate to Sparks votes, why be selective? Why not all? This smells of awarding just enough of the non-existing ballots to Sparks for him to win, as if being fair to Schwab. When it was suggested that the other nine ballots, then, be given to Schwab, the Sparks people betrayed their argument by protesting non-existing ballots cannot be counted.

Having said this, the bottom line is that however reasonable a presumption might be, it is nonetheless a presumption. We do not tally ballots presumptuously but by actual count. Uncountable ballots must go uncounted and have no bearing on an election.

Moreover, the canvassing board was influenced by State Attorney General Mike Hatch, himself a Democrat. Late in the campaign Hatch appointed Sparks to some phantom committee, thus making the first entry in Sparks' political -- indeed, public service -- resume. When I read the announcement, I laughed at its transparently political motivation. After having championed his party-mate, Hatch now becomes his savior by influencing the canvassing board in his favorite's favor.

I suggest another vote on this one office in just this one district. If the Supreme Court should rule it to be without legal provision, which seems to be so, but also in violation of law, then let it be a carefully monitored straw vote as a guide to the canvassing board in reassessing its presumptuous finding.

Legislators must be elected by choice of the people represented, not by presumption of a state agency politically influenced.

Dr. Wallace Alcorn’s commentaries appear in the Herald on Mondays