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Free & Fair

Conscientious Judging on Display

For anyone watching the Minnesota Supreme Court in today’s oral argument of Coleman v. Franken, the impression should have been one of judges striving to find the right answer according to the law and the record of the case.

As expected, the court’s justices asked many questions of both sides, and if the Q&A appeared to favor Franken, it was largely because there are procedural problems with Coleman’s position, and the justices appropriately probed them to figure out exactly what is properly in front of them on appeal.

This momentous case may end up with a rather anticlimactic ruling that Coleman loses not because his legal arguments lacked merit, or even that the ballots he wanted counted weren’t voted for him in a large enough ratio, but instead because he simply failed to take the evidentiary steps necessary to show which specific ballots were wrongly treated by local election officials. If that indeed is the outcome, the inevitable question will arise: why did Coleman’s lawyers fail to take the necessary steps? Was it a lack of money, or a strategic decision not to spend it? Or some other explanation?

Coleman’s strategic litigation decisions, insofar as they were on display during the oral argument, can be second-guessed on other grounds as well.   Joel Friedberg, Coleman’s attorney at the podium, led with a “substantial compliance” argument that met with stiff resistance, yet he returned to it repeatedly—including in rebuttal. The argument appeared too amorphous, and suggestive of permissible lawlessness, to gain traction. In essence, the “substantial compliance” argument is that under Minnesota law, it is permissible for local election officials to deviate from the requirements of the governing statutes, as long as they don’t deviate too much. (For example, even if the Minnesota statute requires an absentee ballot to be witnessed by a Minnesota resident who is a registered voter, the “substantial compliance” argument says that local election officials can ignore this statutory registration requirement in deciding to count absentee ballots.)From his client’s perspective, Friedberg would have been better served by arguing that local officials improperly violated the governing statutes, with consequences that the judiciary now must fix. (Or even arguing that the statutes themselves are not as strict as they might superficially appear, and thus it is not a matter of excusing non-compliance but rather enforcing full compliance, properly understood.)

At various times during the oral argument, the Justices seemed to be helping Friedberg out, by reframing his position in more favorable terms. And yet Friedberg seemed to resist or ignore this assistance. For example, Justice Page asked a series of questions designed to get at whether Coleman was claiming that some of Minnesota’s statutes had been applied improperly by local officials, and Friedberg eventually answered with a rather unhelpful “yes and no”. At another point, Friedberg was asked what the remedy should be, assuming that ballots were wrongly counted on Election Night, and his response was to count more invalid ballots (a response he had to walk back by reverting to his falling-on-deaf-ears “substantial compliance” position). Instead, Friedberg should have said, on the assumption that the number of unlawfully counted ballots dwarfs Franken’s apparent 312-vote margin of victory, the only available remedy is for the Minnesota Supreme Court to declare the election void on the ground that its winner is unknowable. But Friedberg seemingly shrank from the implications of making that request, with the consequence that he and his client may end up empty-handed.

Friedberg’s style is to be impressionistic, to “paint with a broad brush” as was said this morning. Whether that approach works in other contexts, it may not be well suited for election disputes of this sort, whether there is an accountant-like need for a ballot-by-ballot audit to quantify the exact number of votes for each candidate. Interesting, some close observers of this case have thought that Coleman’s strongest filing to date was his reply brief before the Minnesota Supreme Court, precisely because that brief had a level of specificitylacking in some of Coleman’s previous submissions. Yet Friedberg largely abandoned the detail-oriented approach taken in the reply brief, reverting to the vaguer form of Coleman’s earlier arguments.

Franken’s attorney, Marc Elias, fared better in the courtroom today. He got his share of difficult questions, but he managed to deflect most of them by resorting to the procedural point that Coleman simply had not met his evidentiary burden to back up his legal theory. More significantly, perhaps, Elias presented a plausible account of what Minnesota’s statutes require local officials to do when reviewing absentee ballots and, then, why that understanding of the statutes comports with both the practice of local officials on Election Day and the U.S. Supreme Court’s precedent of Bush v. Gore. Elias’s account may not be the only plausible one, but it had more clarity and cohesion than what Friedberg offered this morning, and the justices let Elias articulate it without significant interruption towards the end of his allotted time, thereby suggesting that it made sense to them.

If the Minnesota Supreme Court rules for Franken, it would be wrong to jump to the conclusion that the court inevitably must be biased against Coleman. On the contrary, the trial court unanimously ruled against Coleman and displayed no bias or unfairness. In the end, impartial jurists reasonably might conclude that Franken has the better case on the merits. Or, alternatively, the conclusion might be that Coleman’s attorneys failed to put before the court a winning case that perhaps, with a different strategy, they could have made.

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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