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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

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An Extra “Equal Protection” Thought: Local Policy or Local Mistakes?

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February 19, 2009

Although it appears now that the three-judge court in Coleman v. Franken will reject any version of the federal Equal Protection argument that Coleman’s attorneys may attempt to argue, it still remains intellectually interesting to consider whether some variations on the Bush v. Gore theme may have more cogency than others. In a previous post I have already explored some factual distinctions that conceptually might be relevant: for example, the volume of ballots wrongly counted under state law (large or small) in relation to the number of uncounted ballots with the same state-law defect; or the character of the state-law defect in relation to “core” attributes of a voter’s basic eligibility (felon status, missing signature, lack of complete address for ballot’s witness, for example).

Here’s another distinction, based on news reports of some recent trial testimony: what if a sizable number of ballots in some localities were wrongly counted under state law, not because of an accumulation of individualized mistakes by low-level government employees (poll workers, for example), but instead because of a conscious policy decision by a highest county-level official with the authority to make election administration policy for that county? To be sure, in this situation the county-level policy decision is in contravention to state statute, but nonetheless it was a policy decision by the authoritative county official to accept ballots despite what state law says. In effect, it was the “law” of the particular county, which was the “law” enforced on Election Day by that county.

Does the existence of this county-level official “policy” make a difference under federal Equal Protection? I should be clear that I’m not necessarily saying that Coleman has definitely proven factually that such a county-level “policy” did exist. But maybe. There has been testimony apparently that in some counties, as a result of the highest level election officers, there was at least a regular practice of not investigating whether an absentee ballot’s witness was a registered voter, for example. But does a regular practice rise to the level of a policy? Does it matter? Even if there is a relevant distinction for Equal Protection purposes between practice and policy, has Coleman put on enough evidence to prove the existence of a policy, and not just a practice?

One of the main arguments that Franken has been making on why the Minnesota situation is different from Bush v. Gore is the existence of a clear standard in the relevant state statute for accepting or rejecting ballots. Bush v. Gore, by contrast, involved a vague state standard. You don’t have a Bush v. Gore problem, the argument goes, if you have one clear standard in effect that governs the treatment of equivalent ballots throughout the state.

Yet suppose it turns out that in reality there is not one clear statewide standard in operation, but different local standards because some counties have adopted and enforced their own local standards, notwithstanding the existence of the state standard. In this situation, does this local variation in standards and policy (not just in individualized mistakes in the implementation of the single statewide standard) essentially undercut the existence of the single uniform state standard for the purpose of federal Equal Protection analysis? Operationally, is it more like counties coming up with their own local standards in the absence of a uniform state standard?

I don’t know the answer to this question, but it seems worth exploring. Thinking it through may require drawing upon a body of law broader than election law or even Equal Protection law specifically. As part of the enforcement of the Fourteenth Amendment more generally, there has developed over decades a jurisprudence concerning official state conduct that might be in derogation of state law yet nonetheless satisfies the “state action” requirement of the Fourteenth Amendment. In fact, as a law student over twenty years ago, I wrote my “law review note” on this topic: Unauthorized Conduct of State Officials under the Fourteenth Amendment: Hudson v. Palmer and the Resurrection of Dead Doctrine, 85 Columbia L. Rev. 837 (1985). As I recall, relevant to some—but not all of the issues in that field of inquiry—was whether a plaintiff could point to a county-level “custom or policy,” and not just individualized mistakes of local officials. But I have not kept up with developments within that body of law, and I have an impression there have been considerable developments since the mid-1980s. Still, that body of law seems worth consulting for what bearing it might have on the kind of Fourteenth Amendment questions that arguably have been raised by the evidence presented so far in the Coleman v. Franken trial.

In contemplating this scholarly inquiry, I hasten to add what is perhaps obvious: it should make no difference what candidate, or what political party, makes this kind of argument. We can easily imagine any candidate or party arguing in some future case: the Equal Protection principle of Bush v. Gore applies if localities adopt their own policies regarding the counting of ballots, in derogation of a state statute, because that’s a situation where no uniform standard is actually in operation governing the conduct of local officials. Thus, while it is conceded for purposes of this argument that Bush v. Gore does not apply as long as a single uniform standard controls (even if some individual local officials deviate from the standard), Bush v. Gore still governs Equal Protection analysis—or so this argument would go—where the state standard has been countermanded by the highest policymaking authority within the county.

Another point to consider: Bush v. Gore is often considered inapplicable where state law has made a “conscious” choice to permit local variation on a particular question of election administration. A classic example is one mentioned in Bush v. Gore itself: it is presumptively permissible under the Equal Protection Clause for the state to authorize localities to purchase different types of voting machines, even though those machines have different error rates in counting ballots. The state here is making a considered decision to value local autonomy. It can balance that value against competing considerations, including the value of uniform treatment of similarly situated voters.

But where the state has written a uniform rule into its statutes and expected localities to follow that rule, then there has been no state-level policy judgment to encourage (or even tolerate) local policy differences on the point. The fact that the authoritative local officials have gone ahead and adopted their own different local policies anyway cannot be seen as rationally instrumental to the implementation of the relevant state policy. Just the opposite. The local initiative to adopt its own policy is contrary to the state’s asserted goal of uniformity on this point.

The upshot of this analysis might be that it matters how deep and widespread the local policy variance is with the state’s professed desire for uniformity. Maybe if it is just one “renegade” county that for a short time has deviated from the otherwise strictly followed uniform state standard, that fact pattern might not rise to the level of an Equal Protection violation. It’s more like one poll worker at a precinct repeatedly making the same mistake about a state’s voter ID rules. To be sure, the poll worker is not making “policy,” whereas the single “renegade” county is, but an “isolated” instance of local policy variance might matter, compared to widespread local policy variance. Thus, if it turned out that a dozen or more counties had adopted the same policy in contravention of the state’s statute, and had been enforcing their variant policy for years, that might be a very different situation. One might think, or find even evidence, that the Secretary of State has turned a blind eye to this local variance—and then one might reasonably say that the so-called uniform law on the books, looking solely at the state statute, wasn’t really an indication of the true situation. The strictly uniform state standard in the statute had lapsed under the longstanding implementation of local policy variation, and yet there had been no conscious state legislative choice to replace the uniform state standard with a regime of permissible local autonomy. The uncertainty and conflicting signals in state law in this situation might start to resemble the uncertainty of the state standard in Bush v. Gore.

I offer these conjectures without any view of what conclusions ultimately might be drawn from them. I observe only that, analytically, they make possible a narrower form of Equal Protection argument than Coleman appears to having been making so far. But narrower does not necessarily mean correct. Moreover, if these conjectures are at all useful, they indicate that what would separate a valid from invalid Equal Protection argument would be highly fact-dependent (a point consistent with the Court’s opinion in Bush v. Gore). One would need to review the trial record more closely than I have to know whether Coleman has proven the key facts to line up with the narrower Equal Protection theory, even if that theory is sound.

No matter what the facts, a narrower Equal Protection argument would seem to have no chance of prevailing before the three-judge court, given its rulings to date. Nonetheless, from a national perspective, the Coleman v. Franken trial is exposing new nuances and wrinkles to Equal Protection analysis that might become relevant down the road.