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Speculations about Equal Protection: The Difficulties of Principled Line-Drawing

As Coleman v. Franken moves to the Minnesota Supreme Court, the law professor in me continues to ponder the constitutional question that is the heart of Coleman’s appeal. In this essay, I neither repeat nor recant what I wrote last week about the Minnesota trial court’s decision. Instead, I wish to explore why I remain uneasy about the Equal Protection issue in the case, despite what the three trial judges unanimously—and rather cogently—wrote about the issue.

I hasten to say that the outset that my unease does not translate automatically into a belief that Coleman has a meritorious Equal Protection claim on appeal (and thus even less implies that Coleman’s appeal, if meritorious as to the law of Equal Protection, translates into enough new votes to overcome Franken’s 312-vote victory, as pronounced by the trial court). But this unease does suggest that I, for one, am still searching for the clearly discernible principle that explains why Bush v. Gore presented a valid Equal Protection claim but Coleman v. Franken does not. 

(The exercise on which I am about to embark assumes that it is worthwhile to search for principled understanding of Bush v. Gore and its applicability as precedent to future cases. Some scholars and perhaps lower-court judges, too, have doubts on this point. But I take it as a basic precept of our judicial system that, unless and until Bush v. Gore is overruled or narrowed by the U.S. Supreme Court itself, it is the obligation of lower-court judges to accept its authoritative status and thus attempt to treat it in a principled way, as they would any other Supreme Court precedent. In any event, I proceed on that assumption, as I have elsewhere).

In distinguishing Bush v. Gore, the three judges relied heavily, as they have before, on the fact that Minnesota’s statutes are quite precise on the limited permissible grounds for rejecting an absentee ballot, whereas Florida law was notoriously vague on how to handle a dimpled or hanging chad. But that distinction between Minnesota and Florida can’t completely explain away the precedent of Bush v. Gore. To understand this point, consider the following hypothetical.

Helpful Hypotheticals?

Suppose that the State of Utopia (a favorite on law school exams) has a statute providing that an absentee ballot cannot count unless the voter’s address is “complete” on the envelope in which the ballot is submitted. That statute would seem to provide the clarity contemplated by the Minnesota trial court’s opinion. But suppose that the Utopia Supreme Court had interpreted this statute to mean that an address on an envelope is adequately “complete” even if it is missing a zip code or other piece of information, as long as the relevant local board of election considers the information provided to be sufficient to identify the voter.

Suppose, further, that local boards then differ on how much of an address can be missing and still be adequately “complete” under the Utopia Supreme Court’s overarching standard. Some local boards will permit both the zip code and town name to be missing, as long as they can recognize the street address as being within their jurisdiction, whereas other boards do not consider a street address alone to be sufficient, but will require either the zip code or town name to complete the voter’s address.

This hypothetical situation now seems comparable to Bush v. Gore despite the apparent clarity of Utopia’s statute. Indeed, the problem in Bush v. Gore was not the vagueness of language in Florida’s statutes. On the contrary, as Chief Justice Rehnquist wrote in his concurrence, Florida’s statutes did not contemplate any statewide manual recount of chads that voters failed to dislodge completely. (531 U.S. at 118-119.) Instead, the problem in Bush v. Gore was vagueness in Florida law generated by the Florida Supreme Court’s decision to permit the statewide manual recounting of less-than-completely-dislodged chads according to a general “intent of the voter” standard. As a result, some Florida localities would accept a dimpled chad as a valid vote, while others would require a chad to be punctured, with light passing through, in order to count it. This locally different treatment of equivalent chads, caused by the Florida Supreme Court’s imprecision, seems no different in principle than the locally different treatment of equivalent addresses on absentee ballot envelopes caused by the Utopia Supreme Court’s imprecision.

What the Florida, or Utopia, statute says does not change the situation. As the majority opinion in Bush v. Gore explained:

“For the purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition.” (531 U.S. at 105.)

The local variation caused by the Florida Supreme Court’s imprecision was enough to create the Equal Protection problem in Bush v. Gore, regardless of what the Florida statute provided. The same point is true about the hypothetical Utopia Supreme Court’s interpretative gloss that clouds the preexisting precision in Utopia’s statute.

Now, someone may accept this point about the Utopia hypothetical, as far as it goes, but say that it is irrelevant to the real-world comparison between Bush v. Gore and Coleman v. Franken. The Minnesota Supreme Court has not construed the state’s absentee ballots statutes to render them imprecise in the same way as the Utopia Supreme Court. (Coleman may argue that the Minnesota Supreme Court’s 3-2 ruling, which required previously rejected absentee ballots to count, if both Coleman and Franken—along with the local election officials—agree that they had been wrongly rejected, added an element of imprecision that did not previously exist in the statute. Maybe so, but Coleman was not required to agree to the counting of any absentee ballots he thought would create an Equal Protection problem, and so it would seem that he should be precluded from complaining now about this particular judicial ruling.)

Let us, then, modify the Utopia hypothetical to say that the Utopia Secretary of State, rather than the Utopia Supreme Court, is the authority responsible for interpreting the statute in a way that introduces imprecision. To be sure, there are those who say that it is crucial to understanding the Equal Protection holding in Bush v. Gore that Florida’s judiciary was responsible for the imprecise standard that governed the court-ordered statewide recount. We’ll never know for certain unless and until the U.S. Supreme Court clarifies the imprecision of Bush v. Gore itself, but I for one believe that the Bush v. Gore Court would have found the same Equal Protection violation if the local variation in treatment of dimpled chads had been caused by an order for a statewide recount issued by the Florida Secretary of State. After all, for the Secretary of State’s imprecise standard to be operational, the state’s judiciary would have to acquiesce in it. Thus, it would seem to matter little for purposes of Equal Protection analysis whether the imprecision in state law was caused by the Florida judiciary directly or by the Florida judiciary upholding an equivalent order from the Secretary of State.

Still, the relevance of the modified Utopia hypothetical may be questioned, since there is no claim (of which I am aware) that the Minnesota Secretary of State has issued an order causing Minnesota’s statute regarding absentee ballots to become imprecise. But is an order from the Secretary of State really necessary for the equivalent situation to exist under Equal Protection analysis? Making another modification to the Utopia hypothetical, suppose that local boards of election take it upon themselves to interpret in different ways what the statute means by a “complete” address. Some counties on their own decide to accept an address without either a town name or zip code, while other counties insist on at least one or the either. If neither the Utopia Secretary of State nor the Utopia Supreme Court invalidates that local variation in the interpretation of the state statute, isn’t that situation essentially the same as if the Utopia Secretary or State or Utopia Supreme Court issued a ruling that caused the identical local variation? (Presumably, either the Utopia Secretary of State or the Utopia Supreme Court, or both, will have the opportunity to pass judgment on the validity of the varied local interpretations of the relevant state statute in the event that a close election becomes disputed and enters some sort of administrative recount and/or judicial contest to review the result.) Would it have made a difference in Bush v. Gore if Florida had required an automatic manual statewide recount, given the closeness of the vote between Bush and Gore, but then the localities on their own developed different standards for handling dimpled chads? If in response to this local variation the Florida Supreme Court had not insisted on statewide uniformity with respect to identically dimpled ballots, would not the Bush v. Gore majority have found the same Equal Protection violation?

Counting or Recounting Ballots: Does “Equal Protection” Apply Differently?

Most of Minnesota’s real-world variation in the treatment of absentee ballots occurred during the initial counting and canvassing of the ballots, before the recount and subsequent Coleman v. Franken trial occurred. Perhaps this fact is the key to understanding the difference between Coleman v. Franken and Bush v. Gore. (Rick Hasen and Eric Black have suggested that it might be.) Interpretative gloss that renders a statute imprecise, if it occurs before there is an initial count of ballots showing a miniscule margin of victory, cannot be viewed as a suspicious effort to distort the plain meaning of a vote-counting statute in order to skew the result towards a favored candidate. There is at least a hint of this concern in the U.S. Supreme Court’s majority opinion in Bush v. Gore. The opinion’s description of the facts in Bush v. Gore gives the impression that the Court’s majority is troubled by what it perceives to be the unstable, chaotic, and thus arbitrary procedures that result from the apparently novel interpretative gloss on Florida’s statutes that emerges in the midst of this intense vote-counting dispute: “three members of the [same] county canvassing board applied different standards in defining a legal vote”; “at least one county changed its evaluative standards during the counting process”; and so forth. This variation in the rules for counting ballots occurred all while the vote-counters knew the exceedingly narrow gap in the then-pending vote totals for Bush and Gore.

By contrast, when local officials in Minnesota varied in their initial decision to accept or reject absentee ballots, they did not know whether Coleman or Franken (or even Barkley) would be ahead, or by how many votes. But if this distinction best explains the difference between Coleman v. Franken and Bush v. Gore, it is intellectually frustrating that the three-judge trial court’s opinion did not explicitly rely on it. Yet if the court had replied on it, would this distinction have held up under rigorous analysis? Even though the interpretative gloss that causes statutory imprecision occurs before a recount in a razor-thin election, if the recount process validates the vote totals that result from that interpretative gloss—rather than insisting that a strict reading of the statute govern all of the ballots cast in the election—then isn’t that post-hoc validation of the interpretive gloss essentially the same as when the interpretative gloss itself surfaces after the ballots were cast?

If the local variation in dimpled chads had occurred because the interpretative gloss on Florida’s statutes was longstanding, as some argued at the time, would the venerability of the interpretive imprecision have made a difference to the Bush v. Gore majority? After all, the Florida Supreme Court ratified that local variation regardless of the pedigree of the interpretative gloss. Does when the interpretative gloss first occurred really matter, assuming that the interpretative gloss eventually controls which ballots count and which don’t?

The three-judge trial court opinion in Minnesota, in its effort to distinguish Bush v. Gore, says that it adhered to a strict understanding of the relevant statute. In doing so, it seemed to disavow any ratification on any interpretative gloss by local election boards that may have caused imprecision, and thus variation, in the counting of absentee ballots. But the three-judge court’s decision leaves standing the local decisions made in accordance with their own interpretative gloss and, in that sense, is a ratification of those decisions (even though the court itself would not have made these ballot-by-ballot decisions in the same way).

The Relationship of Right and Remedy?

The three-judge court makes the further remedial point that it cannot undo the counting of absentee ballots already counted. Yet it makes this point as a matter of state law, not federal Equal Protection. It remains unclear what role this remedial point should have in Equal Protection analysis.

Suppose that in the State of Utopia it is physically possible to uncount absentee ballots that had already been counted in localities that adopted a more lenient view of what qualifies as a “complete” address. It would also be possible, of course, to count absentee ballots that had been rejected in localities that had adopted the stricter “complete” address standard. In this situation, according to conventional federal Equal Protection analysis, the remedial question of whether to uncount some, or count others, would be detached from the underlying question of whether equivalent ballots must be treated the same in different localities. Assuming that the correct answer to this federal Equal Protection question is yes—two ballots with equivalent completeness of their addresses must either both be counted or both be rejected, regardless of the locality in which they were cast—then, as long as this federal Equal Protection requirement were satisfied, federal law would leave it to state law to decide whether remedially to count both or reject both.

Utopia, however, could not avoid the federal obligation of equal treatment by asserting that under state law it did not want to uncount previously counted ballots. Fine, federal law would say, exercise your other option by making uniform the more lenient interpretative gloss. “We don’t want to do that either,” Utopia might say. “Too bad,” is the federal response. Provide equality one way or the other, but what you can’t do is deny equality.

The real-world question in Coleman v. Franken is whether this conventional Equal Protection relationship between federal-law right and state-law remedy changes if one of the two remedial alternatives is physically impossible. Federal law might say, in effect, to the state: that’s your problem; as long as you provide equality, we don’t care remedially how you do it; but you can’t claim avoidance of the federal equality obligation by saying that one of two remedial options is unavailable. But maybe the remedial constraint facing Minnesota in Coleman v. Franken should factor into Equal Protection analysis under Bush v. Gore in a way the departs from conventional Equal Protection analysis. If so, the three-judge panel’s opinion did not supply the justification for that departure.

Resource Inequalities to Justify Electoral Inequalities?

In their opinion, the three trial judges in Coleman v. Franken observed that Bush v. Gore indisputably accepts some local variation in the administration of a state’s electoral processes. The three judges further observed that Bush v. Gore seems especially tolerant of local variation caused by differences in available resources among localities for operating the voting process. Some kinds of voting equipment, for example, are more expensive than other kinds, and the U.S. Supreme Court went out of its way to acknowledge that the decision to purchase less expensive voting equipment did not necessarily violate Equal Protection even if inferior equipment results in fewer votes accurately counted in those localities. The three trial judges in Coleman v. Franken grabbed onto that acknowledgement in Bush v. Gore and reasoned that differences in available resources could explain some (and perhaps most) of the local variation among Minnesota counties in the treatment of absentee ballots.

The problem with this “differential resources” argument is that it makes sense when a state’s legislature clearly contemplates local authority to make different decisions based on variations in available resources. It does not make sense in a situation where the state legislature, by statute, has mandated a single statewide standard, but the localities have taken it upon themselves to make different resource-based choices. As I have indicated in some of my scholarship on Bush v. Gore, it is difficult to say that the unequal treatment of identical ballots is “rationally related to a legitimate state interest” in promoting local control over the allocation of scarce resources, when the state’s legislature already has demanded uniformity in the particular context.

“The state-wide standards governing absentee voting in Minnesota are uniform and explicit and apply in every county and city in the state.”  That’s what the three judges said in their final ruling. But given this, it would seem difficult to apply the “differential resources” argument in this context. Even if some localities have much fewer resources than others, the less affluent localities shouldn’t be deviating from legislative mandate for statewide uniformity with respect to counting absentee ballots. In other words, the “differential resources” argument is a good one in some situations, but here it seems in considerable tension with the trial court’s other arguments concerning the clarity and strictness of the state’s applicable statutes.

Local Mistakes Differ from Local Policies

There remains the matter of mistakes. It is possible that some variation among Minnesota counties is caused simply by administrative errors in the implementation of clear statutory directives. I agree with the trial court in Coleman v. Franken insofar as it opines that sporadic good-faith administrative errors, evincing no bias towards any candidate or party, do not rise to the level of a constitutional violation, and Bush v. Gore does not require otherwise.

If the record in a case shows a clear state statute, and if the only deviations from the requirements of that clear state statute are caused by essentially random administrative errors, then Bush v. Gore is distinguishable because there has been no policy-based interpretative gloss that has rendered the statutory standard imprecise. Not from the State Supreme Court. Not from the Secretary of State. And not even from the local jurisdictions themselves acting in accordance with their own policy-based interpretations of the state statute. Instead, just mistakes, pure and simple.

But this distinction between local mistake and local policy is one that deserved more attention from the trial court. As I suggested in an essay midway through the trial, this distinction ultimately might be the one that best separates tenable from untenable Equal Protection claims. In its final ruling, however, the trial court did not attempt to reject the entirety of Coleman’s Equal Protection claim by asserting that all the demonstrated variation among localities in the treatment of absentee ballots was explicable on grounds of local errors rather than local policy. Perhaps the evidence would not have supported that approach. But the trial court’s opinion thus leaves the impression that at least some of the variation among Minnesota counties in the treatment of absentee ballots is caused by differences in consciously adopted local policies, rather than local mistakes. Yet it is the apparent existence of policy-based local differences in the treatment of identical ballots, despite the asserted clarity and strictness of the uniformly applicable state statute for the counting of these ballots, that gives rise to the uneasy feeling that Coleman v. Franken is not as readily distinguishable from Bush v. Gore as the trial court maintained. If Minnesota localities were adopting different interpretive glosses on the relevant statute, rendering it less precise than written, why was the state judiciary tolerating this interpretative deviation, and is this judicial toleration of local interpretative variance different in principle from interpretative variance engendered by the Florida Supreme Court in Bush v. Gore?

Irreducible Complexity in Coleman v. Franken

Minnesota is not Utopia.  The actual circumstances regarding the treatment of absentee ballots among Minnesota counties may differ from the highly stylized Utopia hypothetical, even as modified in various permutations. One of the basic truths about Coleman v. Franken is that it does not involve just one way in which localities are alleged to have treated absentee ballots unequally—like the Utopia hypothetical involving what qualifies as a “complete” voter address on the absentee ballot. Instead, in Coleman v. Franken the claim is that absentee ballots were treated unequally in a myriad of ways: signature matching, witness requirements, ballot delivery, and so forth.

It may well be that different arguments work to distinguish Coleman v. Franken from Bush v. Gore with respect to specific ways in which the localities are alleged to treat ballots unequally. The “differential resources” argument might work with respect to one specific category of alleged inequality (verifying a witness’s registration, for example), whereas it would be inapplicable to another (signature matching, for instance). Likewise, the “mistake” argument might work for some categories (perhaps ballot delivery) but not others (ID requirement).

But the trial court did not tie any particular argument to any specific category of alleged inequality. Instead, it rejected Coleman’s Equal Protection claim as a whole. This wholesale approach is somewhat surprising insofar as the same three judges were meticulous in proceeding specifically category-by-category to resolve questions of state law.    Whether surprising or not, the court’s approach in rejecting Coleman’s Equal Protection claim leaves an impression that the court’s work on this issue was somewhat unfinished. If the invocation of the Utopia hypothetical is persuasive in illustrating that it is not enough simply to say that Minnesota statutes on absentee ballots are clear, and/or that differences in available resources justifies local variation in the treatment of equivalent ballots, then the law professor is left hungry for more explanation on why Coleman’s claims should be rejected under Bush v. Gore. (Perhaps the law professor is never satisfied in searching for theoretical consistency, and that is why the legal philosopher Ronald Dworkin named his ideal judge Hercules.)

This analysis is not to suggest what the right answer would have been for each specific category of alleged inequality, if the trial court had undertaken that fact-intensive inquiry. I have not studied the trial record at that level of detail, especially with the view to ascertain whether “local mistake” or “local policy” applies in each instance.

The Paramount Value of Procedural Legitimacy

Moreover, even if I thought that the trial court “got it wrong” on the Equal Protection issue from a perspective of theoretical purity, it would not follow that I would want the Minnesota Supreme Court to reverse the trial court’s decision. As I have said repeatedly throughout this trial, because the Equal Protection issues in this case are particularly indeterminate in light of Bush v. Gore, it is more important the three judges are nonpartisan and unanimous on these issues—as they have been—than they reach any particular answer on these issues. Only if the Minnesota Supreme Court unanimously reverses the three judges in an opinion that is just as transparently nonpartisan would I believe that the public need for a fair and impartial resolution to this contentious election case has been as well served by that court as by the trial court’s decision.

I explore the Equal Protection issues on appeal, thus, not to give ground for reversing—or affirming—the trial court’s ruling. Rather, I do so out of a scholar’s sense of duty (or perhaps, more accurately, compulsion) to treat the issue with as much intellectual rigor and honesty as one can muster. If some of the discussion of the Equal Protection issues seems underdeveloped, then it is the scholar’s role to attempt to develop them. But the scholar can play this role and simultaneous think it is subsidiary to the paramount value of procedural legitimacy: ultimately, this case will be decided by a court of law, not by the academic musings, and the highest virtue of the judicial tribunal that finally settles this election is that its decision be maximally perceived by the public as the product of unbiased deliberation.

Whichever way the Minnesota Supreme Court rules on Equal Protection, if its ruling is perceived as politically motivated, then its resolution of the case will have fallen short according to this most important standard. 

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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