Posted: February 12, 2009
Minnesota Law and Federal Equal Protection
In my judgment, the most interesting development that emerged from this afternoon’s series of oral arguments in Coleman v. Franken—other than the fact that the three-judge panel, by their questioning, clearly seemed more sympathetic to Franken’s presentation than to Coleman’s—is the potentially rather confusing relationship between (a) Coleman’s argument based on Bush v. Gore and the federal Equal Protection Clause and (b) how to apply Minnesota’s statutory rules regarding absentee voting.
I’ll endeavor to make this initial impression of the oral arguments as concise and non-technical as I’m able. Much more could, and eventually should, be written on this interesting interrelationship. But a relatively broad brush might be useful for this first sketch.
First of all, the federal Equal Protection issue might no longer be in this case. That’s the position that Franken’s attorney, Marc Elias, took. He argued that the three-judge panel, in its February 3 Order on Coleman’s Motion for Summary Judgment, already rejected Coleman’s Bush v. Gore claim on the merits. (I’ve addressed that ruling, and whether it has that implication, previously.) But, as Elias also observed, Coleman’s attorneys repeatedly keep mentioning federal Equal Protection and this court’s obligation to comply with federal constitutional standards, and they certainly did so again throughout today’s series of oral arguments. So, maybe the federal Equal Protection issue is still in this case—at least until the court rules definitively one way or the other.
How the Coleman attorneys make the federal Equal Protection argument sometimes seems as if it shifts from time to time. Occasionally, it is a straightforward Equal Protection argument in its purest form: various local counties transgressed Minnesota’s statutory law on absentee voting by counting ballots that they shouldn’t have, and federal Equal Protection now requires that essentially equivalent absentee ballots in other localities must be counted, even though doing so certainly is not compelled by Minnesota law alone and arguably transgresses Minnesota law as much as the initial mistaken counting of ballots that sets the predicate for the Equal Treatment (i.e, Equal Protection) claim. But federal Equal Protection trumps the state court’s instinct to comply with state law, since it’s a higher authority under the Supremacy Clause of the U.S. Constitution. In essence, here the Coleman argument is that “two wrongs” really do make the only “right” that is feasible at this point; as his lead lawyer, Joe Friedberg, repeatedly says, it’s a point about the remedial power and obligation of the court.
The Coleman side acknowledges that there is a de minimis exception to this argument. If one ballot somewhere in the state is wrongly counted by a local official in violation of Minnesota’s absentee ballot statutes, it does not follow that thousands of previously rejected ballots that are just like it must now be counted. But they say that can demonstrate that hundreds or thousands of absentee ballots have already been counted in derogation of the relevant Minnesota statutes, and when the problem reaches this magnitude, then federal Equal Protection demands the counting of hundreds or thousands of additional ballots that are just like the ones already mistakenly counted.
I think that the Coleman side would acknowledge that there are further limits to their “pure” federal Equal Protection argument. For example, even supposing hypothetically that it turned out that hundreds or thousands of non-citizens or felons had managed to cast ballots that were counted in violation of Minnesota law, I don’t think they would claim that hundreds or thousands of more ballots cast by non-citizens or felons should now be counted even though these ineligible ballots were correctly caught and rejected by other local officials. There is a basic eligibility prerequisite to Coleman’s federal Equal Protection claim.
But that’s where matters start to get a bit murky, at least to me. Is being a registered voter a basic eligibility prerequisite to the federal Equal Protection claim, like being a citizen and a non-felon? (I think Coleman would say yes, but not 100% sure.) Is signing an absentee ballot envelope a basic eligibility prerequisite because it’s the voter’s sworn statement of eligibility? (Again, I think yes.) Now, what about the requirement of the witness’s signature, since Minnesota law demands a witness to verify the eligibility of an absentee voter? At this point, one starts to see that the “pure” Equal Protection claim is not so purely a matter of federal constitutional law after all, and starts to bleed into considerations of Minnesota’s statutory law. And, it is important to remember here that “official error” is irrelevant to this basic eligibility prerequisite point: there are some things a voter must comply with (like being a citizen and perhaps signing the absentee envelope) that are absolute, regardless of the amount of official error that let equivalent voters in improperly.
Equal Protection cannot be a mechanism to compound official error with respect to these basic eligibility requirements, whatever they may be. And it is unclear, again at least to me, exactly what source of law one turns to in order to distinguish between these basic eligibility prerequisites that are immune from the Equal Protection argument, as compared to non-essential requirements that are not immune from the obligation to treat similarly situated voters equally. Does this distinction come from Minnesota law, federal constitutional jurisprudence, or some combination of the two? As far as I can tell, Coleman’s Equal Protection analysis is underdeveloped on this point—even assuming he is still permitted to argue it before this court.
But in today’s oral argument, Coleman was also using Equal Protection in a very different way, not trying to rely on it directly as an independent source of legal obligation that the three-judge state court must follow. Instead, it was a kind of indirect use. He says, in effect, that Equal Protection considerations must now inform the court’s interpretation of what Minnesota statutes on absentee voting mean. He acknowledges that looking at the language of the statute alone might lead the judges to think that Minnesota law provides one thing. But, he says, the judges no longer can look at the language of the statute alone, given all the evidence of different treatment of essentially identical ballots in different counties. Some counties have been interpreting the same Minnesota statute more leniently than other counties have, and this differential local interpretation must now be a factor in how the court itself interprets the same statute. It becomes a “gloss” or “veneer” on the words of the statute, in the words of Coleman’s attorneys.
It is an interesting argument, even if it does not appear to be attracting much sympathy with the three-judge court. I wonder if the judges are resistant to it because it is often confusing whether Coleman is making the pure, direct Equal Protection argument, or instead this indirect use of Equal Protection as a gloss on Minnesota’s statutory law? I also wonder if the judges are a bit confused (as I am) about the relationship of this indirect use of Equal Protection and Coleman’s repeated invocation of his “substantial compliance” point.
“Substantial compliance” is one of Coleman’s attempts to get the court not to follow Minnesota statutes strictly. He says that Minnesota voting law has an overarching philosophy that its statutory rules don’t need to be followed strictly, when “strict compliance” would be contrary to the interest of voter disenfranchisement. He’s having a rough time with that argument, particularly because Franken’s attorneys can cite Minnesota Supreme Court precedents that appear to reject that position at least with respect to the absentee voting portion of the state’s voting laws.
But whatever the merits of Coleman’s position on that issue, it appears to me that it is in considerable tension with his reliance on Equal Protection. Local officials ignoring strict compliance with election rules would appear to create the Equal Protection problem that Coleman is complaining about: some local officials end up being more voter-friendly than others; their understanding of “substantial” compliance is significantly less “strict” than “substantial” compliance elsewhere. (By contrast, a rule is a rule is a rule—however harsh—might be a pretty good way to guarantee Equal Treatment/Equal Protection.) So an overall “substantial compliance” approach to Minnsota’s election laws wouldn’t seem to be a good thing from an Equal Protection point of view.
Instead, if Coleman jettisoned his reliance on “substantial compliance,” it might be easier to understand his indirect use of Equal Protection as a gloss on Minnesota statutory law. Local deviation from statutory rules is not a good thing—not to be encouraged, as a “substantial compliance” approach would seem to do—but it unfortunately happens. Equal Protection, however, is a paramount value in state law, as well as federal law. Equal Protection, indeed, might prefer that Minnesota’s absentee ballot laws be interpreted strictly (for reasons just stated), but when local officials have already wrongly deviated from statutory law, Equal Protection is necessarily imbedded in any reading of Minnesota’s election law because of its paramount value. It’s kind of like a self-correcting gyroscopic device inside Minnesota’s election law to make it fair, and one doesn’t need to invoke separate federal constitutional law to make the point; you have to do it simply as part of properly enforcing Minnesota law.
If this is what Coleman is getting at with his second, indirect form of reliance on Equal Protection—and I’m not entirely confident that it is—there would still be lots of questions to answer before one could conclude that it led to the counting of any particular category of absentee ballots. There’s still the problem of distinguishing which statutory requirements are absolutely essential: in other words, more paramount as a statutory matter than even the Equal Protection value. But at least understood this way, the argument pitched to the three-judge state court wouldn’t be pitting “strict compliance with state statutory law” against “Supremacy Clause obligation to follow federal constitutional law, which preempts an ability to do what state law requires.” That’s not an attractive tension, especially for this three-judge panel. Instead, the issue would be—entirely within Minnesota’s own system of election law—how it balances the usual obligation for strict compliance against the value of fairness of treating similarly situated voters the same when local officials already have deviated from strict compliance.
In other words, it is Coleman’s remedial point, made as a proposition of state law, rather than federal constitutional law. But it is a remedial point, not a “substantial compliance” point about how the law is supposed to work in the first instance.
I’m exploring this possibility not because I necessarily think it should prevail, but only to try to understand analytically what I think is going on in this interesting and complicated case. But what’s ultimately important is how the court understands the relationship of Equal Protection and Minnesota’s election law. Based on what the court has said about scheduling, we may know more on that as soon as tomorrow or Monday.
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