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Free & Fair

A Victory for the Rule of Law

Friday's unanimous ruling in Coleman v. Franken is only an interim victory for non-partisan judicial consideration of election contests; there are many more steps before the fight over Minnesota’s U.S. Senate seat is resolved.

Last Friday evening, as many folks who follow Election Law know, the three-judge court in Coleman v. Franken issued an important ruling that narrows the scope of ballots remaining in dispute. Regrettably, most of the media coverage of the decision—as well as the blogosphere commentary on it—has been about how it affects the chances of the two candidates to prevail. (Prevailing sentiment: big win for Franken since the court unanimously agreed with his legal position for the most part; some contrarians claiming it doesn’t diminish the number of ballots significantly.) Relatively little discussion has been devoted on whether the decision is in the public interest.

It is, and it is important to understand why.

It is Exhibit A on why Minnesota 2008 is not Florida 2000.

There have been many overstated comments from defensive Minnesotans, including some made by this three-judge panel itself, on how Minnesota differs from Florida in administering its voting laws. The fact is that Minnesota’s reputation for having a “gold standard” electoral system has been tarnished somewhat as a result of the scrutiny of this ongoing recount-plus-contest. To his credit, Secretary of State Mark Ritchie is moving to reform the administrative weaknesses that have emerged, including those over the handling of absentee ballots (which is the current focus of the court proceedings).

Still, the work of the three-judge court confirms that, in one absolutely crucial respect, Minnesota does differ from Florida: its judicial rulings over the counting of ballots do not appear to be a partisan effort to tilt the legal playing field to assist a favored candidate.

Recall that the key decision of the Florida Supreme Court in 2000, the one that was reversed by the U.S. Supreme Court in Bush v. Gore, was a 4-3 ruling to require a statewide manual recount to look at even “dimpled chads” according to an amorphous “intent of the voter” standard. Right or wrong, Republicans viewed the majority opinion as an effort by Democratic judges to steal the election for Al Gore.

The ensuing U.S. Supreme Court decision produced no better outcome from a “rule of law” perspective. A split 5-4 ruling to stop the Florida judiciary from engaging in any more recounting of ballots, even under a more precise and constitutionally acceptable standard—this majority opinion was viewed by many Democrats (again, right or wrong) as an attempt by Republican judges to steal the election for George Bush.

Had those two courts in 2000 been confronted with a case involving, not dimpled chads, but rejected absentee ballots presenting the issues ruled on by the three-judge court in Coleman v. Franken, is there any reason to believe that those two courts in 2000 would have done a better job? Assume, in other words, that Al Gore as the contestant back then had been making the same arguments over rejected absentee ballots that Coleman, the current contestant, has been making. Would the courts in 2000 have been unanimous in their rulings?

I don’t think so. On the contrary, there is every reason to believe that the Florida Supreme Court would have split 4-3 in favor of Al Gore, even if the dispute back then had been over rejected absentee ballots—the majority of that court would have adopted the argument that it is necessary to find flexibility in the statutory rules to prevent inequitable disenfranchisement—and the U.S. Supreme Court would have voided that decision by a 5-4 vote and ordered an end to all further consideration of those ballots.

Another way to put this point is that it is easy to imagine other courts around the country, if faced today with the same case as Coleman v. Franken, releasing a very different decision than the one that came down on Friday. In many states, a three-judge panel would have split 2-1 in this case, unless all three judges came from the same political party, and the same point would be true of three-judge federal courts sitting in those states.

If you don’t believe me, just read Florida NAACP v. Browning, Secretary of State, a 2-1 federal court decision in April 2008 concerning Florida’s voter registration system. Eight years after Bush v. Gore, the courts are still dividing along party lines over Florida’s election laws. And there have been similarly divided rulings in cases involving Ohio’s election laws.

It is not as if Friday’s ruling was the only possible outcome the three-judge court could have reached. On the contrary, there was a plausible argument supporting Coleman’s position. Any judge sympathetic with that position easily could have written an opinion to justify that outcome. (Some background on the legal issues that the court addressed in Friday's ruling, written beforehand, helps show the possibility of the court going either way.)

To be sure, Coleman v. Franken is confounded by the fact that the partisan Republican position happens to require embracing the ideologically liberal view of voting rights, whereas the partisan Democratic position requires adopting the ideologically conservative view of voting rights. Judges might well be conflicted between their partisan and ideological motivations.

But it is not as if judges in election cases always follow their ideological rather than partisan instincts, when the two conflict. On the contrary, one of the reasons why the Justices on the U.S. Supreme Court came in for such intense criticism—including specifically the criticism of hypocrisy—was that the majority ruling to prohibit Florida from conducting any further recounts was so patently contrary to the “states' rights” ideology of the five Justices who took that position. Seeking a victory for the home team seemed so clearly to override ideological purity in this instance.

What is so significant about Friday’s unanimous ruling is that the three judges appear to be trying hard to avoid letting either partisanship or ideology affect their decisions in this case. They appear, to their credit, to be attempting to “de-personify” their decisions, meaning that it doesn’t matter who personally happens to sit as judges in this case. Rather, it is the Law objectively that is dictating the outcome, not any of their subjective points of view.

Of course, their self-conscious effort to implement the law objectively, without taint of partisanship or ideology, is a product of their mutually orchestrated appointment by Justice Alan Page. They were known at the outset to be one Democrat (DFL), one Republican, and one Independent appointee. Therefore, they have striven to prove that this background is irrelevant to their decisions.

The three of them have come into some criticism for moving the contest trial slowly. But I say that their deliberateness is justified to the extent it is necessary to preserve their unanimity. It’s not their fault that the contest was not filed until January 6, essentially two months after Election Day. That’s the fault of Minnesota's statutory rule that prohibited the preliminary recount from definitively resolving the issues that now must be addressed in the contest. Nor is the three-judge court to blame that Franken cannot get a temporary certificate while the contest continues; again, that’s the fault of existing Minnesota statutes unless and until either the state’s supreme court or its legislature decide otherwise.

The three judges themselves recognize the need to go as fast as possible, which is why they ordered the briefing and argument that led to Friday’s ruling.

To be sure, the case is far from finished, and the three judges may stumble before it ends. Indeed, at least one huge issue remains in front of them, in part a product of Friday’s ruling, as evidenced by Coleman’s effort today to get them to reconsider that decision.

The reasoning they unanimously adopted leads to this conundrum: apparently hundreds of ballots have already been counted that do not meet the definition of a “legal vote” under Minnesota law, as interpreted in Friday’s opinion. Coleman uses this conundrum to argue that, in the interest of Equal Protection as required by the U.S. Constitution, the definition of a “legal vote” must expand to make these previously counted ballots qualify—and then the court must count all the as-yet-uncounted ballots that are equivalent. I have previously analyzed this argument, and the point here is not to evaluate its merits. Rather, Coleman is correct that the court must address it one way or the other.

Either the court must say that Minnesota law must yield to the higher authority of U.S. constitutional law or the court must explain why it need not: perhaps because Coleman procedurally waived this constitutional argument, or because the court considers it an incorrect understanding of the U.S Constitution. But the court cannot ignore this issue before its final judgment. (At the very least, the court must clarify why it thinks it previously has disposed of this issue.)

Indeed, I would go further than Coleman apparently has pressed so far in regard to the current conundrum. Even under Minnesota law, without regard to federal Equal Protection, there remains an unresolved issue of what to do with previously counted ballots that are not “legal votes” according to the court. While it is physically impossible to extract them from the count that produced Franken’s 225-vote lead, it does not follow necessarily that there are no other available remedies under state law (short of counting more ballots that also are not “legal votes”). One possibility might—and I stress might, because it requires a thorough review of Minnesota statutes and judicial precedents that I have not done—be to declare that the court is unable to identify either candidate as the winner of more “legal votes” (because the existing count is inevitably tainted, or polluted, by the inclusion of too many ballots that are not “legal votes”).

[Update (2/18/09):  A reader of this comment has kindly raised the possibility that, at least with respect to the 933 absentee ballots counted by the Canvassing Board, record-keeping procedures would permit them to be "uncounted" if the three-judge court were to determine that any of them are not legal votes.  These ballots, however, were subject to a Stipulation entered by the parties and the three-judge court that would appear to permit the "commingling" of these ballots with all other counted ballots, thus ending the special record-keeping procedures applicable to them.  It is unclear as of this update whether that "commingling" has yet occurred.  In any event, it is my understanding that with respect to any absentee ballots counted on Election Day, they have already been "commingled" in this sense and thus cannot be physically extracted from the pool of counted ballots.]

Even if the court lacks the power to order a new election, it could simply release a final judgment saying that it is unable say which candidate received more legal votes, and leave it to other parts of the state government to figure out what to do in this situation. Again, I emphasize that I’m not necessarily saying that would be the right course of action for the court to take even if the facts at trial eventually show that the number of counted ballots that are not legal votes is larger than 225 (or whatever the lead ends up being). I’m saying only that the court would need to tackle this state-law issue, and resolve it one way or the other (or rule it procedurally waived), before the court could consider its work complete (assuming that Coleman got around to raising this issue if his Equal Protection argument fails).

We should hope that the court is able to maintain its unanimity and objectivity as it confronts these additional issues, which are much harder even than the statutory interpretation it engaged in for Friday’s ruling.

As I said at the outset of this fight over counting the votes in this U.S. Senate election, one side or the other ultimately has to lose. What is important is how they lose.

In Florida 2000, the strong—and distasteful—impression was left that “who lost” depended on which side controlled the highest court. It was not a fair fight, if the ultimate umpire belonged to one of the two teams.

What’s important about Friday’s ruling is that it indicates that this court will be resolving the case before it as best as it can impartially according to the Law, and not because a majority of its members are rooting for one team over the other. Let’s hope that the rest of its rulings leave the same impression.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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