OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz


Free & Fair

Impressive Unanimity: the Historical Significance of Coleman v. Franken

This piece was originally written for MinnPost where it also can be retrieved.

Now that Norm Coleman has conceded, in the aftermath of today’s unanimous Minnesota Supreme Court ruling, the eight-month-long battle to determine who won last November’s election for the state’s U.S. Senate seat is finally over. Even as the concession eclipses the opinion in political importance—and appropriately so—the opinion will begin its life as one of the most legally significant resolutions of a disputed election in U.S. history.

Its historical significance lies in the fact that it is the first appellate court resolution of a major statewide election after Bush v. Gore. The seven-month dispute over Washington’s gubernatorial election of 2004 resulted in a trial court ruling, but it was never appealed. Puerto Rico’s disputed gubernatorial election of the same year did result in a 4-3 decision of the Puerto Rico Supreme Court (as well as a federal appeals court decision declining to intervene), but that precedent lacks the direct relevance to future U.S. elections that today’s decision has.

Today’s opinion discusses Bush v. Gore, and its treatment of that U.S. Supreme Court decision in the 2000 presidential election is the most important judicial analysis of that precedent to date. The reason for its importance is that it analyzes Bush v. Gore in a setting most comparable to Bush v. Gore itself: a post-election fight over which candidate won more votes.   Citations to Bush v. Gore in other contexts, like pre-election disputes over how to count provisional ballots, are merely invocations of that precedent for whatever analogical force it might have. Coleman v. Franken is a consideration of Bush v. Gore in a situation where it most closely applies.

The Minnesota Supreme Court opinion, like the unanimous trial court ruling it affirms, holds that the Equal Protection principle of Bush v. Gore is not violated when a state statute provides a clear and specific rule for local officials to follow in the counting of ballots, even if some local officials fail to follow that clear rule. As long as the local officials’ failure to follow the clear and specific state rule, even if deliberate, was not designed to favor one candidate over another (or otherwise discriminate improperly among classes of citizens), that failure—while regrettable—is not unconstitutional.   Here’s the key passage from today’s opinion on this point:

“[T]he essence of the equal protection problem in Bush was that there were no established standards under Florida statutes or provided by the state supreme court for determining voter intent . . . Here, [by contrast,] there were clear statutory standards for acceptance or rejection of absentee ballots, about which all election officials received common training.”

The Minnesota Supreme Court then made the additional observation that local variation regarding how to determine a voter’s intent from the ballot itself raises additional concerns not present with respect to examining an absentee ballot envelope to determine voter eligibility. Local discretion in “reviewing the face of the ballot itself,” as the court noted, “create[s] opportunities for manipulation of the decision for political purposes.” There is less risk of that when “the actual votes on the ballot contained in the return envelope were not known to the election officials applying the standards.”

The Minnesota Supreme Court thus cabins the scope of Bush v. Gore, making it the exception rather than the rule when it comes to evaluating the conduct of local election officials in vote-counting process. This treatment of Bush v. Gore is likely to be persuasive to other state supreme courts as well as to federal appeals courts and, indeed, the U.S. Supreme Court itself. Thus, Coleman v. Franken will set the governing standard for analysis of Equal Protection claims in post-election disputes over which candidate won, and Bush v. Gore will constitute a narrow exception to that governing standard.

Coleman v. Franken will be influential in this way in part because of the strength of its reasoning: it reads well as a judicial opinion; its analysis is well-structured, and its logic is cogent. It will be influential also because of its unanimity, in contrast to the 5-4 (or, if you focus exclusively on Equal Protection, 7-2) resolution of Bush v. Gore. This unanimous affirmance of the unanimous trial court will stand as a model for how hard-fought battles over the winner of a high-stakes election should be handled.

Coleman v. Franken is hardly the first time in U.S. history that a state supreme court has been able to diffuse by means of a unanimous ruling a contentious dispute over which candidate won a major statewide election. As early as 1837, the Maine Supreme Court unanimously resolved a dispute over that state’s gubernatorial election. In 1855, moreover, the Wisconsin Supreme Court issued a major precedent that, along with public support for that ruling, caused the state’s incumbent governor to give up the seat he was tenaciously clinging to (and threatening to use force to maintain).

Nor is unanimity a guarantee of fairness or public perception of legitimacy. In 1917, the three-member Arizona Supreme Court was unanimous in ousting the Republican incumbent Governor and installing the Democratic challenger in his place. But that ruling did not sit easily with everyone in the state, as the three members of the court were all themselves Democrats and they were reversing a fellow Democrat trial judge who had ruled in favor of the Republican incumbent. (The trial judge would later go on to serve as Governor and Justice of that court, and he never reconciled himself to the reversal of his ruling in this election contest, always maintaining that he had properly determined that the Republican incumbent had indeed won reelection.) Thus, the unanimous Arizona Supreme Court ruling, given its circumstances, was unable to attain the historical status of impeccable impartiality that today’s decision is likely to hold over time.

It was not automatic for the Minnesota Supreme Court to be unanimous in this case, as Bush v. Gore itself indicates—in both the U.S. Supreme Court decision as well as the Florida Supreme Court decision it reversed. There are other examples of unfortunate divided rulings in comparable cases, including the Illinois Supreme Court’s 4-3 resolution of that state’s disputed gubernatorial election of 1984. Indeed, the Alabama Supreme Court’s fractious mishandling of a dispute over the election of its own Chief Justice in 1994 required intervention of the federal appeals court to set things right (an intervention that paved the way for the U.S. Supreme Court’s ruling in Bush v. Gore).

The Minnesota Supreme Court’s unanimity in Coleman v. Franken will stand the test of time as a model of judicial impartiality in the resolution of a intensely combative election contest because the membership of that court is politically diverse and because its decision follows upon the unanimity of a comparably diverse 3-judge trial court.

No one can reasonably accuse Minnesota’s judiciary of favoring Franken because he was a Democrat. The ruling and the reasoning of the judiciary would have been the same if the positions of the candidates had been reversed.

No one can ask more of a judiciary faced with this kind of case. In that sense, Minnesota has shown the nation how to resolve an election contest as fairly as is feasible.

In the aftermath of Bush v. Gore, this reminder of how to do it right is most welcome. 

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

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

more commentary...

In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

more EL@M in the news...

Info & Analysis

Daniel P. Tokaji

Tokaji Testimony for Senate DISCLOSE Hearing

Professor Tokaji has submitted the following writing testimony for today's hearing before the U.S. Senate Rules and Administration Committee on the proposed DISCLOSE Act.

 

more info & analysis...