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Election Law @ Moritz

Free & Fair

MN Contest Court Off to a Good Start

In a ruling today, the "tripartisan" 3-judge panel assigned to hear Coleman's contest of Franken's 225-vote lead after the recount of the U.S. Senate election in Minnesota ("tripartisan" because it has one Democrat, one Republian, and one Independent judicial appointee) unanimously rejected Franken's motion to dismiss the contest without a trial.  Based on an initial reading of the court's opinion, in my judgment the ruling is legally sound, well reasoned, and suggests that the panel will preside fairly over this legal case. 

Franken's principal argument was that the court could not hear the matter because the U.S. Senate has the ultimate authority to decide which candidate prevailed.  The 3-judge panel explained, citing the relevant U.S. Supreme Court precedent, that its consideration of the contest is merely preliminary and does not prejudge the Senate's ultimate determination.  This ruling seems correct, especially after (as the court also noted) the Minnesota recount was necessarily incomplete in considering some of the issues that have emerged, including those specifically concerning alleged double-counting of some votes and erroneous or inconsistent treatment of rejected absentee ballots. 

The court also rejected Franken's argument that Coleman's claims are insufficiently specific to proceed to the next stage of litigation, in anticipation of a trial on whether they are correct factually.  The court was correct to express concern, in sympathy with Franken's position, that unduly vague or generic allegations are inappropriate in an election contest, particulary because of the need to bring closure to the unsettled election as expeditiously as possible.  But the court was also sound in ruling that at least some of Coleman's allegations -- including the two mentioned above (alleged double-counting and rejected absentee ballots) pass this preliminary threshold test.  The court's balanced treatment of this point, again, bodes well for a fair consideration of the case as it proceeds to the next stage.

The court's ruling, it must be emphasized, in no way indicates that Coleman will ultimately prevail in this contest.  Even if he gets to a trial on his claims, it is unclear at this point (at least to me) whether he has the evidence to prove his factual allegations, as well as whether or not Franken has counter-evidence of his own concerning other ballots that could affect the eventual result. 

But today's ruling shows that the contest is proceeding in an orderly, legally appropriate way--which maximizes the court' s own explicitly stated goal of "conducting the proceedings in such a way that the public will have faith in our electoral process and confidence in our judicial system."


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


Daniel P. Tokaji

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Daniel P. Tokaji

By "Kobach," I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

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In the News

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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.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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