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Free & Fair

Out from the Shadows of Bush v. Gore

Now that we have a final decision from the trial court in Coleman v. Franken, it deserves recognition that this decision—because of the court’s composition and the deliberative process by which it conducted the process—satisfies the test of fairness identified way back in November.

If all the evidence and arguments for the Contestant and Contestee in Coleman v. Franken were the same and only the parties were reversed—so that Franken were the Contestant and Coleman the Contestee—there is virtually no doubt whatsoever that the same three-judge panel would have decided the case in exactly the same way. This strong confidence in the impartiality of the panel is the highest accolade one can bestow on a tribunal tasked with adjudicating a dispute in a major statewide election, particularly one involving significance to the two national political parties of this U.S. Senate seat. 

It is, regrettably, not a judgment that one confidently could make about the U.S. Supreme Court in Bush v. Gore. The queasiness that many observers have about that case, even still more than eight years later, is that the Court majority would have rejected the Equal Protection claim there had Gore been the candidate making it. Thus, whatever else one says about the relationship of Coleman v. Franken and Bush v. Gore, the three-judge panel’s ruling is distinguishable for the simple reason of its evident impartiality.

That distinction arguably should be enough. If Minnesota law did not give the losing party in this case the right to an appeal, there would be no denial of justice. The ability of a candidate to receive a fair hearing before a structurally balanced tribunal—as this three-judge panel was, with its Democratic, Republican and Independent appointees—suffices to assure that the outcome deserves acceptance by the members of the public regardless of whom they voted for. Minnesota law, however, does allow for an appeal to the Minnesota Supreme Court. But when a trial court has been as evidentially impartial as this one, one might hope that the losing party does not try to get the higher court to reach a different outcome—a hope equally to be felt if Coleman had been the victor in this court. What does it say about any candidate who attempts to overturn an impartial ruling, based on the evidence and the law, which would have been the same even if the parties had been reversed in the case? Is the candidate simply trying to find a different tribunal that won’t be impartial? 

To be sure, it is theoretically conceivable that a three-judge panel could be impartial and unanimous (as this one consistently has been) but mistaken, and that an equally impartial appellate court might unanimously reach the opposite conclusion. Theoretically conceivable, but quite unlikely. And what does Coleman think this three-judge court is mistaken about? The meaning and scope of Bush v. Gore. But Bush v. Gore is the precedent whose provenance is suspicious, given its apparent lack of impartiality. 

Even if a conscientious judge distrusted the motives of the Court majority that decided Bush v. Gore, that judge would be obligated to follow it as precedent, so far as it goes. But how far does it go? Not far at all, according to the Court that issued it, at least on one plausible reading of its infamous self-limiting language: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Even if Bush v. Gore governs a parcel of election law terrain, the reach of its authority is apparently not large and, at its outer edges, hazy.

If there never had been a Bush v. Gore, there seems little doubt that the Equal Protection claim in Coleman v. Franken would be a non-starter. That point seems just as true even supposing it had been Franken, rather than Coleman, making the Equal Protection claim. The three-judge panel cites precedent after precedent, from both federal and state courts, about the inability to claim an Equal Protection violation just because some state officials deviate from an ostensibly clear state statute. Bush v. Gore seems to be the only precedent that cuts the other way, an impression many observers had when it was decided. 

But precedent it is, and one must ask: what if Franken, rather than Coleman, were relying on it? There is no doubt, as stated at the outset here, that this three-judge court would have rejected the same Equal Protection claim if raised by Franken rather than Coleman. But then would Franken be appealing to the Minnesota Supreme Court on the ground that the three-judge panel’s unanimous reading of Bush v. Gore was demonstrably mistaken? Would it be possible for Franken to show it so?   

In a memorandum accompanying its final order, the three-judge court has written considerably—and conscientiously—about Bush v. Gore and its relevance to Coleman v. Franken. Much scholarly commentary undoubtedly will be devoted to the court’s analysis (Rick Hasen has already offered a thoughtful summary), and I plan to return to it myself after contemplating it more. But even in the first few hours after the release of this decision, it seems fair to say that the court’s rejection of Coleman’s Equal Protection claim—in addition to being impartial in the critical sense that the result would have been the same even had Franken been making the claim—cannot be characterized as an obvious misunderstanding of Bush v. Gore. Indeed, it might well be the correct understanding, the one that any other impartial tribunal would reach on the same facts.

In these circumstances, would the Minnesota Supreme Court wish to reach a different answer to the Equal Protection claim and risk appearing to lack the impartiality of this three-judge panel—and risk looking more like the U.S. Supreme Court in Bush v. Gore itself? In this respect, Bush v. Gore is a precedent that no fair-minded court would want to emulate. This negative example of how not to act judicially, rather than the specific contours of its Equal Protection ruling, may be that case’s most important legacy—and Coleman v. Franken, insofar as it distinguishes itself from Bush v. Gore in this respect, may be a major step in restoring the judiciary’s image of being able to decide a nationally prominent statewide election contest impartially.

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


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