Posted: March 31, 2009
Unsurprising Ruling Does Not End Minnesota Senate Case
“We told you so” is essentially what the three-judge court said in today’s ruling. In its now-famous (at least among followers of this case) February 13 order, the court made clear that it would adopt a strict reading of the state’s statutes concerning the casting and counting of absentee ballots. In other statements along the way, the court similarly made plain that this strict reading would require both candidates to meet specific evidentiary burdens in order for additional absentee ballots to be counted as a result of the trial.
Thus, it comes as no surprise that the court has now ruled in effect that Coleman largely failed to meet this evidentiary obligation. What is surprising is that Coleman never really attempted to satisfy the evidentiary standard that the court had clearly identified. Franken, by contrast, when it was his turn to present evidence for the counting of additional ballots he wanted added to post-recount/pre-contest totals, for the most part appeared to follow the evidentiary rules that the court set forth. The fact that he was able to do so makes it all the more puzzling why Coleman never made the effort.
Instead, it seems that after the February 13 order Coleman shifted his trial strategy to focus exclusively on his Equal Protection argument: his claim that the supremacy of federal constitutional law necessitates abandoning strict compliance with Minnesota’s statutory rules even if state law, in the absence of any federal constitutional considerations, would call for the kind of strict compliance articulated in the February 13 order.
That Equal Protection argument remains unaddressed by today’s ruling. It is the subject of major pending motions that have yet to be resolved. The three judges have sent strong signals that they are not favorably disposed to Coleman’s Equal Protection claim. Yet it still casts a shadow over the case, as the major unresolved issue. It has the potential of dwarfing today’s ruling in significance since it implicates a far greater number of ballots. Another way to put this point: if Coleman were somehow able to prevail on his Equal Protection claim, it wouldn’t matter that he failed to meet the evidentiary burdens that governed today’s ruling (and reiterated the February 13 order). Perhaps that’s the reason why he never really tried to satisfy the court’s evidentiary standard: he knew his case ultimately turned entirely on the Equal Protection claim; the rest was essentially inconsequential.
Thus, it remains necessary still to wait for what more the three judges will say about the Equal Protection claim. Since they last addressed it formally in pre-trial “summary judgment” motions, they have heard evidence of inconsistent policies and/or practices among counties on how to handle various recurring issues concerning absentee ballots. The potential implications of this evidence are tricky given the murkiness of Equal Protection principles articulated in Bush v. Gore—a point I’ve discussed previously and won’t repeat here. Bottom-line: Coleman’s Equal Protection claim is hardly a slam-dunk winner. But various possible refined and narrower versions of this argument, depending on the strength of the relevant evidence, are not obvious slam-dunk losers, either, under Bush v. Gore. For this reason, it remains important how the three-judge court explains its final ruling on the Equal Protection claim, even if all observers expect the court to rule against Coleman.
Given all the talk (including by Coleman’s own attorneys) of an eventual appeal to the Minnesota Supreme Court on the Equal Protection issue, the posture of that appeal will be affected by how persuasive the three-judge trial court is in its analysis of this issue in light of the relevant evidence. The likelihood of a split decision in the Minnesota Supreme Court on the Equal Protection issue—for example, 3-2 one way or the other—diminishes in relation to the increased cogency of the three-judge court in its own unanimous treatment of the issue. I’m assuming the continued unanimity of these three judges on the Equal Protection issue, but it seems a safe assumption given their unbroken unanimity so far.
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