Guess what? Ohio ranks especially vulnerable.

As part of my work on post-voting disputes over which candidate has won an especially close election—think Bush v. Gore or Coleman v. Franken, to cite the two most prominent recent examples—I have been contemplating the concept of “uncounted ballots”.   It’s a bit different than the idea of a “residual vote,” which involves a counted ballot that records no vote for a particular race. An “uncounted” ballot, by contrast, is a cast ballot that it is not part of the initial unofficial returns on Election Night.

Conceptually, the three biggest categories of uncounted ballots are: (1) late-arriving absentee ballots that are potentially still eligible(mostly military and overseas ballots); (2) rejected absentee ballots that may have been rejected in error; and (3) provisional ballots that still need to be evaluated. Together, these ballots form a rough measure of a state’s vulnerability to a post-voting dispute in the event of a close result on election night: the larger the number of these uncounted ballots, the greater the possibility that the candidate behind on election night might be able to convert the apparent defeat into a victory. (One could combine the two categories of “uncounted” and “residual” votes, if one thought that the technology in a particular state made it likely that “residual” votes would be a fruitful avenue of litigation.)

The 2008 Election Administration and Voting Survey released by the U.S. Election Assistance Commission contains some data by which one can begin to assess a state’s vulnerability in this regard. From what I can tell so far, there is no reported data specifically on the number of absentee ballots counted after the polls close on Election Day. Still, there is data for each state on the number of rejected absentee ballots and the number of provisional ballots. Thus, one can combined these two numbers for a state to get a sense of how large a pool of uncounted ballots might be fought over if a statewide election were close enough to be worth fighting over.

By this metric, perhaps not surprisingly, Ohio is an especially vulnerable state—the most vulnerable of the likely “battleground” states in a future presidential election. In 2008, Ohio had 25,950 rejected absentee ballots, and 204,651 provisional ballots. By contrast, Missouri had only 5,403 rejected absentee ballots and 6,934 provisional ballots. The 2008 presidential election in Missouri was extraordinarily close (McCain ended up winning by 3,903 votes), but if the entire presidency had turned on the outcome in Missouri, its exposure to litigation would have been lower than Ohio’s, just because it had much fewer uncounted ballots to fight over.

California, even recognizing its much larger population, also has a high number of uncounted ballots: 130,730 rejected absentee ballots, and 798,332 provisional ballots. Although California may not be a presidential battleground, if it has a close Senate or other statewide election, numbers of this magnitude may prove troublesome.

The New York Times recently has stated that Ohio will be one of the most interesting states to watch in the 2010 midterm elections, with potentially competitive gubernatorial, congressional (including U.S. Senate), and judicial and other major races. There is legislation pending in the state legislature aimed at reducing the number of provisional ballots and thus Ohio’s exposure to post-voting litigation in a close statewide race. But if the legislation does not pass (each party controls one of the two chambers, and so far they haven’t been able to compromise on election reform), then perhaps it would actually be beneficial for the state to suffer the shock of a post-voting dispute over absentee and/or provisional ballots in 2010.   Agony next year might pave the way for improved conditions by 2012. Although I wouldn’t wish another Coleman v. Franken on any state, it would be better than another Bush v. Gore.

Today’s news from Afghanistan prompts some thinking on the institutional uncertainty that exists in the U.S. in the event of a disputed presidential election.   Do we want our Supreme Court to have the last word, or would we prefer a special-purpose Electoral Commission structured to be politically neutral between the competing candidates and parties?

The latest word from Afghanistan is that President Karzai has agreed to the run-off called for by the U.N.-affiliated commission’s finding of sufficient fraud to bring his vote total below the 50% mark. His acquiescence is welcome because earlier reports in this morning’s New York Times, as well as on NPR, had mentioned the possibility that Afghanistan’s Supreme Court might, despite the apparently clear text of the Afghan Constitution on the point, have nullified the independent electoral commission’s decision.

The fear was that the supreme court, for political motives based on an allegiance to President Karzai, might subvert the result of a structurally impartial tribunal designed specifically to resolve an election dispute as fairly as possible.

I know nothing about Afghan law—constitutional, electoral, or otherwise—but today’s news stories raise in my mind an institutional question relevant to U.S. law, and I suppose the law of any other democracy.  It relates to Bush v. Gore, our nation’s experience with an Electoral Commission to resolve the 1876 Hayes-Tilden dispute, and any effort to set up an orderly process to resolve a disputed presidential election in accordance with two goals: (1) it is understood in advance by all parties and the public what institution has conclusive authority under the law to settle the dispute; and (2) the institution with this conclusive authority is perceived by all parties and the public to be legitimate and unbiased.

It is sad to say that in our own democracy, even after the lessons of 2000, we cannot say that we have met the first of these two goals, much less the second. Despite Bush v. Gore, we don’t know to what extent the U.S. Supreme Court has, or will purport to have, jurisdiction to resolve disputed presidential elections in the future. Would the Court intervene again, or refrain from intervening next time? Discretionary jurisdiction, with its inevitable uncertainty, is not a good thing for disputes over counting presidential ballots. It invites strategic gaming: we all know the Court sometimes decides to grant or deny certiorari based on whether the Justices, or at least four of them, want to hear or avoid an issue. Even if the Justices’ motives are pure when confronted with a case involving a disputed presidential election, discretionary jurisdiction presents the risk of a perception that the Justices have decided strategically whether or not to intervene.

Moreover, although it is a common misperception, the Supreme Court did not actually have the last word in 2000. Gore’s concession after the Court’s order to stop the Florida recount prevented the dispute from going to Congress, where it would have faced additional institutional uncertainty. (A purported certificate from Florida’s Attorney General, a Democrat, might have been enough of a pretext for Democrats in Congress to act, if Gore had encouraged them—there was a similar certificate from Florida’s Attoney General in 1876—and one can imagine other scenarios involving a defiant Florida Supreme Court majority.) Gore’s concession was good in that it did not put the system to its ultimate test, in the same way that Karzai’s acquiescence today avoids a test of Afghanistan’s institutional structures. But avoiding the ultimate test in 2000 means there is much less public awareness of just how uncertain our institutional mechanism is for handling a disputed presidential election if it gets all the way to Congress.

To the extent that folks focus on this issue, they are likely to think that the Electoral Count Act of 1887—adopted in the wake of the Hayes-Tilden dispute—provides the institutional roadmap. This Act is the maddeningly complicated statute mentioned back in 2000, with the “safe harbor” provision and all. But what few folks realize is that, for all its complexity, the Electoral Count Act fails to specify what to do in several scenarios that could arise: for example, two different certificates from a state’s governor (as occurred in 1960 involving Hawaii’s electoral votes). Moreover, there is a credible—although far from conclusive—argument that the Electoral Count Act is itself unconstitutional under the Twelfth Amendment, for interfering with the President of the Senate’s purportedly sole constitutional authority to count the electoral votes from the states. (Check out the ambiguity of the passive voice in the relevant clause of the Twelfth Amendment if you don’t believe me that there is institutional uncertainty under our Constitution concerning the resolution of disputed presidential elections: “The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted.” Counted by whom? It doesn’t say.)

Even worse, suppose the Senate backs its President, who has declared that one of the candidates has won the White House, while the House of Representatives after January 20th continues to claim no candidate has been officially elected and, therefore, the Speaker of the House serves as Acting President pursuant to the Twentieth Amendment until the dispute is resolved. Yikes. It would be bad enough to have the situation where the Twentieth Amendment is invoked and we need an Acting President, but it would be more horrible still if the House thinks the nation is in this situation while the Senate does not. Neither the Twentieth Amendment nor anywhere else in the Constitution specifies what to do in the event of this bicameral roadblock.

If we were prudent as a nation, we would clear up this constitutional confusion before it ever matters again. Although 2000 is much more recent than 1876, it was 1876 that took us much, much closer to the constitutional brink. We can’t guarantee that next time will look more like 2000 than 1876, and we ought to be prepared for either by preventing the institutional uncertainty that bedeviled both situations.

Yet clarifying the constitutional authority of our nation’s ultimate tribunal in the event of a disputed presidential election would require us to make a difficult choice. We have come to believe as a people in the Supreme Court as our fairest institution, and therefore we might want to repose it with this specific authority. In other words, we could give the Court mandatory and final jurisdiction over any dispute over the counting of presidential ballots: no questions about whether or not the Court will intervene on its own initiative (as in Bush v. Gore), and no possibility for the losing candidate to take the matter to Congress.

But do we think the Court, as it is permanently structured for all sorts of cases not involving elections, has the best institutional design to handle a disputed presidential election? Or do we think that a single-purpose Electoral Commission, structured to be evenly impartial towards the two disputing political parties, would be better for this particular task? If the latter, then we had better be prepared to divest the U.S. Supreme Court of jurisdiction over a discrete set of constitutional questions—those specifically arising out of a dispute over the counting of presidential ballots.

It has not, however, been in our constitutional tradition of the last half-century or more to want to deprive the U.S. Supreme Court of authority to answer constitutional questions. To be sure, the Court itself has invoked the so-called “political question” doctrine on rare occasions, as with the Senate’s sole authority to try impeachments. But that was a case of self-restraint on the Court’s part. We have never explicitly written into the Constitution a new exception to its longstanding self-asserted authority under Marbury v. Madison to answer constitutional questions. Yet that is what would be called for if we wished to amend the Twelfth Amendment to give a special-purpose Electoral Commission conclusive authority to resolve all issues arising out of a disputed presidential election.

Thinking about this question of constitutional architecture is why the news from Afghanistan today resonates. It is not at all obvious that a nation’s supreme court—including our own—is a better institution than a special-purpose electoral commission to settle a disputed presidential election. If the electoral commission is well-designed to be genuinely impartial, then its resolution of the dispute may have greater legitimacy and fairness than one reached by the nation’s general-jurisdiction supreme court. (That would seem true for Afghanistan, which is perhaps why President Karzai acquiesced quite quickly.) Yet if this judgment is correct for the U.S., then it will be necessary to write a clear constitutional clause ordering the supreme court to keep its hands off of the electoral commission’s exclusive jurisdiction over this single type of dispute. Would we as a nation be prepared to ratify that kind of constitutional amendment?

As I write these words today, I note that, coincidentally, one year ago on this date Election Law @ Moritz (together with the AEI-Brookings Election Reform Project and the Georgetown Law School’s Supreme Court Institute) sponsored a simulated oral argument of a hypothetical McCain v. Obama disputed presidential election. We learned a lot from that exercise—particularly how a specially-designed tribunal handles a dispute of this nature, compared to how the Supreme Court handled Bush v. Gore. We continue to learn from that exercise, as we study it in relationship to how the real case of Coleman v. Franken was resolved in Minnesota (also by a balanced three-judge panel specially created for the single dispute). There is more learning to be done, as today’s events from across the globe remind us.

The Minnesota Supreme Court’s decision in the Franken-Coleman case will begin its life as one of the most legally significant resolutions of a disputed election in U.S. history.

This piece was originally written for MinnPost where it also can be retrieved.

Now that Norm Coleman has conceded, in the aftermath of today’s unanimous Minnesota Supreme Court ruling, the eight-month-long battle to determine who won last November’s election for the state’s U.S. Senate seat is finally over. Even as the concession eclipses the opinion in political importance—and appropriately so—the opinion will begin its life as one of the most legally significant resolutions of a disputed election in U.S. history.

Its historical significance lies in the fact that it is the first appellate court resolution of a major statewide election after Bush v. Gore. The seven-month dispute over Washington’s gubernatorial election of 2004 resulted in a trial court ruling, but it was never appealed. Puerto Rico’s disputed gubernatorial election of the same year did result in a 4-3 decision of the Puerto Rico Supreme Court (as well as a federal appeals court decision declining to intervene), but that precedent lacks the direct relevance to future U.S. elections that today’s decision has.

Today’s opinion discusses Bush v. Gore, and its treatment of that U.S. Supreme Court decision in the 2000 presidential election is the most important judicial analysis of that precedent to date. The reason for its importance is that it analyzes Bush v. Gore in a setting most comparable to Bush v. Gore itself: a post-election fight over which candidate won more votes.   Citations to Bush v. Gore in other contexts, like pre-election disputes over how to count provisional ballots, are merely invocations of that precedent for whatever analogical force it might have. Coleman v. Franken is a consideration of Bush v. Gore in a situation where it most closely applies.

The Minnesota Supreme Court opinion, like the unanimous trial court ruling it affirms, holds that the Equal Protection principle of Bush v. Gore is not violated when a state statute provides a clear and specific rule for local officials to follow in the counting of ballots, even if some local officials fail to follow that clear rule. As long as the local officials’ failure to follow the clear and specific state rule, even if deliberate, was not designed to favor one candidate over another (or otherwise discriminate improperly among classes of citizens), that failure—while regrettable—is not unconstitutional.   Here’s the key passage from today’s opinion on this point:

“[T]he essence of the equal protection problem in Bush was that there were no established standards under Florida statutes or provided by the state supreme court for determining voter intent . . . Here, [by contrast,] there were clear statutory standards for acceptance or rejection of absentee ballots, about which all election officials received common training.”

The Minnesota Supreme Court then made the additional observation that local variation regarding how to determine a voter’s intent from the ballot itself raises additional concerns not present with respect to examining an absentee ballot envelope to determine voter eligibility. Local discretion in “reviewing the face of the ballot itself,” as the court noted, “create[s] opportunities for manipulation of the decision for political purposes.” There is less risk of that when “the actual votes on the ballot contained in the return envelope were not known to the election officials applying the standards.”

The Minnesota Supreme Court thus cabins the scope of Bush v. Gore, making it the exception rather than the rule when it comes to evaluating the conduct of local election officials in vote-counting process. This treatment of Bush v. Gore is likely to be persuasive to other state supreme courts as well as to federal appeals courts and, indeed, the U.S. Supreme Court itself. Thus, Coleman v. Franken will set the governing standard for analysis of Equal Protection claims in post-election disputes over which candidate won, and Bush v. Gore will constitute a narrow exception to that governing standard.

Coleman v. Franken will be influential in this way in part because of the strength of its reasoning: it reads well as a judicial opinion; its analysis is well-structured, and its logic is cogent. It will be influential also because of its unanimity, in contrast to the 5-4 (or, if you focus exclusively on Equal Protection, 7-2) resolution of Bush v. Gore. This unanimous affirmance of the unanimous trial court will stand as a model for how hard-fought battles over the winner of a high-stakes election should be handled.

Coleman v. Franken is hardly the first time in U.S. history that a state supreme court has been able to diffuse by means of a unanimous ruling a contentious dispute over which candidate won a major statewide election. As early as 1837, the Maine Supreme Court unanimously resolved a dispute over that state’s gubernatorial election. In 1855, moreover, the Wisconsin Supreme Court issued a major precedent that, along with public support for that ruling, caused the state’s incumbent governor to give up the seat he was tenaciously clinging to (and threatening to use force to maintain).

Nor is unanimity a guarantee of fairness or public perception of legitimacy. In 1917, the three-member Arizona Supreme Court was unanimous in ousting the Republican incumbent Governor and installing the Democratic challenger in his place. But that ruling did not sit easily with everyone in the state, as the three members of the court were all themselves Democrats and they were reversing a fellow Democrat trial judge who had ruled in favor of the Republican incumbent. (The trial judge would later go on to serve as Governor and Justice of that court, and he never reconciled himself to the reversal of his ruling in this election contest, always maintaining that he had properly determined that the Republican incumbent had indeed won reelection.) Thus, the unanimous Arizona Supreme Court ruling, given its circumstances, was unable to attain the historical status of impeccable impartiality that today’s decision is likely to hold over time.

It was not automatic for the Minnesota Supreme Court to be unanimous in this case, as Bush v. Gore itself indicates—in both the U.S. Supreme Court decision as well as the Florida Supreme Court decision it reversed. There are other examples of unfortunate divided rulings in comparable cases, including the Illinois Supreme Court’s 4-3 resolution of that state’s disputed gubernatorial election of 1984. Indeed, the Alabama Supreme Court’s fractious mishandling of a dispute over the election of its own Chief Justice in 1994 required intervention of the federal appeals court to set things right (an intervention that paved the way for the U.S. Supreme Court’s ruling in Bush v. Gore).

The Minnesota Supreme Court’s unanimity in Coleman v. Franken will stand the test of time as a model of judicial impartiality in the resolution of a intensely combative election contest because the membership of that court is politically diverse and because its decision follows upon the unanimity of a comparably diverse 3-judge trial court.

No one can reasonably accuse Minnesota’s judiciary of favoring Franken because he was a Democrat. The ruling and the reasoning of the judiciary would have been the same if the positions of the candidates had been reversed.

No one can ask more of a judiciary faced with this kind of case. In that sense, Minnesota has shown the nation how to resolve an election contest as fairly as is feasible.

In the aftermath of Bush v. Gore, this reminder of how to do it right is most welcome.

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.

Reading both Coleman’s and Franken’s appellate briefs—Coleman’s reply is due Friday—has caused me to dig deeper into the factual details concerning this case. I thought I knew this case fairly well from attempting to follow it closely throughout its entirety. But the deeper I dig, the more I learn, and the more I realize I don’t know, or am unsure of, about the record. 

Franken’s brief to the Minnesota Supreme Court emphasizes the issue of waiver, arguing repeatedly that Coleman waived the various claims he is attempting to pursue on appeal. Franken may win the waiver issue, in which case the Minnesota Supreme Court will never need to address the merits of the appeal. (Or Franken may partially prevail on the waiver issue, thereby narrowing the scope of the appeal to be addressed on the merits.) But for purposes of this discussion, I will assume that Franken’s waiver arguments are unsuccessful, and thus the court will consider the merits of Coleman’s appeal.

Regarding the merits, Franken’s brief largely paints with a broad brush, treating Coleman’s claims about absentee ballots in bulk, rather than taking on one-by-one the nine separate categories that Coleman presented in his brief. As a litigation strategy, Franken’s approach may be successful, getting the Minnesota Supreme Court to reject Coleman’s federal and state-law claims regardless of the particular factual contexts to which they apply. The particular facts relating to variations among local practices may be the terrain on which Franken feels the least comfortable, and thus his brief may be deliberately avoiding the details of these local variations as much as possible.

In one place, moreover, his brief seems to me to mischaracterize the facts as I understand them. Of course, I may be incorrect, and even if the brief is inaccurate in this respect, it is unlikely to be intentionally so, but the issue is a potentially significant one, and thus it would make sense to clarify the situation at oral argument if possible.

Consideration of this factual issue leads, in turn, to exploration of other related—as well as contrasting—factual issues. Lawyers often say that cases are decided based on their facts, rather than on abstract principles of legal doctrine. That aphorism might also prove true in this case.

Witness Registration and the March 31 Order

The factual issue that I believe Franken mischaracterizes concerns the first of Coleman’s nine categories, the one that Coleman considers the “starkest illustration” of local variation in the treatment of equivalent ballots and the one I discussed at length in my last essay on this case. This category, as readers may recall, is where the witness portion of the certificate on the absentee ballot is complete and unproblematic on its face, containing a Minnesota address for the witness, but it turns out that the witness is not a registered voter. As Coleman alleges, some localities accepted ballots in this situation without checking the Statewide Voter Registration System (SVRS), presuming instead the voter to be registered, while other localities did check and thus rejected any ballot if the SVRS did not show the witness to be registered.

In his brief (at page 37), Franken says that Coleman’s claim about this differential treatment of the same situation among localities is really a non-issue because “the trial court already remedied any alleged problem.” Specifically, Franken contends that the trial court “adopted what Appellants characterize as the more lenient approach, requiring nothing more than a Minnesota address to prove registration.” (Same page, citations omitted.) In other words, Franken seems to be saying that the trial court accepted any ballot previously rejected by the localities that had checked the SVRS and found the witness unregistered—or at least that the trial court would have accepted these ballots upon Coleman’s completion of the necessary additional steps for validating them in other respects (including, for example, showing that its voter did not also vote a regular in-person ballot on Election Day). No need to worry about any disparities among localities on this point, Franken apparently argues, because the trial court itself was willing to review any ballot rejected by counties applying the more stringent standard, and the trial court’s own review would be conducted according to the more lenient standard, thereby creating a single uniform and lenient standard for all ballots statewide.

But Franken’s characterization of the trial court’s position on this issue is not how I understand it. To be sure, in its March 31 order—a ruling that has received less attention than either its February 13 order or its final Findings of Fact & Conclusions of Law (on April 13)—the trial court stated that it “accepted the witness as a registered Minnesota voter if the witness gave a Minnesota address and there was no evidence to the contrary concerning the witness’s registration status.” (Page 17.)   This sentence, however, does not do what Franken appears to argue that it does.

It is true that this sentence embraces the lenient standard in a certain respect, just not in the respect relevant to Coleman’s claim with respect to the local variation on this issue. The key language is the last clause of the sentence: “the Court accepted the witness as a registered Minnesota voter if the witness gave a Minnesota address and there was no evidence to the contrary concerning the witness’s registration status.” (Emphasis added.)  But in the situation where a locality applied the more stringent standard and examined the SVRS and found the witness was unregistered, there necessarily would be “evidence to the contrary” regarding whether this witness was registered. Thus, the trial court would not accept this ballot for counting, and the consequence of different local standards regarding this situation remains unremedied.

If the same absentee ballot had been cast in a locality that applied the lenient standard on Election Day, the witness would have been presumed registered, the SVRS would not have been checked, the witness’s actual lack of registration would not have been discovered, and the ballot would have been counted. In making this observation, I do not mean to say that Coleman necessarily has a winning Equal Protection claim with respect to the fact that some localities counted ballots on Election Day based on the lenient standard, while others rejected equivalent ballots based on the strict standard. Rather, I’m suggesting here that the Equal Protection claim does not disappear simply on the ground that “the trial court has already remedied [the] alleged problem,” as Franken puts it, if my reading of the trial court’s ruling is correct. Ballots that would have been counted in lenient localities remain rejected under the trial court’s ruling because they were cast in strict localities, and the trial court refused to require these ballots to be treated in the same way as they would have been if they had been cast in lenient localities.

The partial leniency expressed in the trial court’s March 31 order applies only to absentee ballots rejected for reasons other than the one at issue here—that the witness was not registered. In other words, when ruling on a ballot that had been rejected on some other basis (for example, that the voter’s signatures of the ballot envelope and the original application do not match), and having concluded that the ballot was wrongly rejected on this other ground, the court was thus in the position of needing to verify the ballot’s validity in other respects. In this circumstance, the trial court was willing to presume that the witness was registered if the witness had a Minnesota address, and thus the trial court would not itself check the SVRS. In that respect, the trial court was acting like a lenient locality rather than a strict one. But this practice in that circumstance does not negate the fact that where an absentee ballot was rejected by a strict county for the specific reason that the witness was not registered, that rejection remained operative according to the trial court’s ruling—because the strict county refused to apply the lenient presumption and had uncovered evidence that the witness was not registered.

The Implications of the March 31 Ruling on Witness Registration

Assuming I am correct in my understanding of the trial court’s March 31 order, what difference might it make to an analysis of the merits of Coleman’s claim? A number of possibilities arise, but the one that seems most worthy of attention is whether it affects the interpretation of the relevant state statutes along the lines that I undertook in my previous essay. To recall, the key statutory interpretation question seems to be on what basis should local election officials be “satisfied” regarding the “complet[ion]” of the certificate on the absentee ballot envelope: should they be satisfied as long as the certificate on its face is “complete,” listing the witness’s Minnesota address? Or are officials entitled to remain unsatisfied unless and until they check the SVRS to make sure the witness is registered?

The argument might be made that what’s good enough for the trial court itself should be good enough for local election officials. In other words, the trial court deemed itself satisfied—when tasked with the obligation of verifying a ballot’s eligibility and thus acting in the shoes of local election officials—to look only at the completeness of the certificate itself and not check to the SVRS. If the trial court acted properly under the statute, why should local officials be entitled to adopt on their own a more stringent standard of acceptability?

“Limited local resources,” a justification proffered to permit localities to deviate from a uniform state standard, does not apply in this instance.   “Limited local resources” would justify not taking the time and expense to check the SVRS; it does not justify taking that extra step when the trial court did not, based on its preference for presumptively trusting absentee voters about the registration status of their witnesses: “Voters overwhelmingly testified that they asked their witnesses whether they were registered voters. Given this testimony and the instructions to the voter,” (emphasis added) the trial court declined to second-guess voters by checking the SVRS.   Under the statute, are election officials in some localities entitled to distrust voters more than the trial court did?

If all localities should have acted as the trial court did, and I am correct in my understanding of the limited way in which the trial court applied its standard, then there are ballots that should not have been rejected but were. A separate state-law remedial question remains about what, if anything, should be done in an election contest lawsuit about this violation of the relevant state statutory standard—as I also discuss in my previous essay. But if the correct answer to this remedial question is that the witness’s lack of registration should not now invalidate the ballot (because the witness’s lack of registration would not have been discovered through a SVRS search, if the localities had been acting properly under the statute by confining themselves to an examination of only the completeness of the witness’s certificate on its fact, as described in my previous essay), then the ballot presumably should be counted in the election contest lawsuit as long as it would have been eligible for counting on Election Day in all other respects. And if a proper analysis of state law does not yield this conclusion, there remains the federal Equal Protection issue: when the trial court adopted a lenient standard for its own evaluation of witness certificates, why would the trial court be justified in simultaneously giving operative effect to localities that adopted a stricter standard? There may well be a good and sufficient answer to this question, but it would become necessary to confront that Equal Protection issue if state law tolerates the differential treatment of equivalent ballots, as factually it still seems to be the case on this “witness registration” point. (But, again, waiver, or a failure on Coleman’s part to offer the necessary proof regarding the validity of specific ballots, may mean the Minnesota Supreme Court never needs to worry about whether it must confront this Equal Protection question.)

Incomplete Witness Addresses & the Trial Court’s Moderate Leniency

Franken’s argument about local disparities being cured by the trial court’s conduct, even if inapplicable to the “witness registration” issue specifically, does seem applicable, however, to some of the other eight categories that Coleman identified in his brief. For example, the March 31 order shows that the trial court was also willing to be somewhat lenient on the issue of whether the witness’s address was sufficiently complete to qualify under the statute. Indeed, as a more general point, it is quite remarkable just how lenient the trial court was in its March 31 order, given the reputation it earned for strictness in its own statutory interpretation based on the February 13 order. I don’t think it is well understood, even by those who follow Coleman v. Franken closely, how significantly the March 31 order deviates from the strictness of the February 13 ruling—and how this deviation may have affected the trial court’s handling of particular ballots (either those actually presented to it, or those that could have been presented to it, if litigants had followed all the necessary procedures).

The April 13 Findings of Fact & Conclusions of Law do not highlight the evolution in the trial court’s thinking from February 13 to March 31, but instead appear to revert back to the strictness of the February 13 ruling—yet without repudiating the operative force of the March 31 order in terms of the trial court’s own review of ballots. One of the challenges for the Minnesota Supreme Court may be to determine, based on its review of the entire record before it, just how significant a role the March 31 standards played in the trial court’s evaluation of ballots. To do so would seem to require an appellate examination of the ballots themselves. Neither the March 31 order nor the final April 13 document explains how the trial court’s standards apply to particular ballots.

The March 31 order states (at page 17): “In limited instances, the Court accepted an absentee ballot witnessed by an individual who provided a street address or a post-office box without a city or zip code where the parties also offered into evidence the witness’s voter information look-up from the [SVRS] or the witness’s complete address was evident from the fact of the ballot.” Depending upon what the trial court meant by “limited instances”—does it mean a subset of those envelopes with the described criteria (and if so what subset?), or does the entire set of envelopes with the described criteria define the “limited instances”?—the trial court’s leniency on this issue would seem to go a long way to solving the problem of local variation on the same issue. In his appellate brief (at page 12), Coleman complains that some localities strictly required an absolutely complete address: a missing zip code or city name, even if the other information was present, apparently would invalidate the ballot in these “strict compliance” localities. By contrast, other localities were more lenient, accepting incomplete addresses, rather in the manner of the trial court itself.

Thus, the relevant question becomes: how many ballots were not acceptable under the trial court’s moderately lenient standard but would have been accepted under even more lenient local standards? As a practical matter, this number might be rather small—and significantly lower than the “more than 300 ballots” that were rejected by localities using an absolute “strict compliance” standard, which was much harsher than the trial court’s own standard. Unlike with the “witness registration” issue discussed above, this “witness address” issue is not one for which a local standard stricter than the trial court’s remained functionally operative at the trial court’s stage of ballot review. If the trial court considered the address adequate, the ballot was accepted for counting assuming all other necessary aspects of the ballot’s validation were satisfied. Thus, Coleman could have had any ballot rejected by a locality under too harsh a standard accepted by the trial court’s more lenient standard, if Coleman undertook all the necessary steps to prove the ballot’s validity. Despite this opportunity, if ballots still remain uncounted that would have been acceptable under the trial court’s moderately lenient standard, the responsibility may be Coleman’s for having failed to provide the additional proof necessary to validate the ballots in other respects.

To be sure, Coleman does say that some localities were willing to accept ballots where the witness’s address was entirely “missing,” whereas the trial court clearly required at least a street address. But was the trial court wrong under Minnesota law to require at least this much in order to be “satisfied” that the certificate had been “completed as prescribed” (in the language of section 203B.12? And if not, then would the trial court be obligated under Minnesota law to count ballots that failed to meet this appropriate standard just because some localities had improperly been excessively lenient in willing to accept a ballot with no witness address at all? That remedial obligation seems doubtful as a matter of state law. Nor does it seem likely that federal Equal Protection would compel this conclusion.   In this particular context, the improper excessive leniency on the part of some localities does seem a rather minor error that does not rise to the level of a federal constitutional violation (as long as only a few localities strayed from the trial court’s norm, and because this deviation concerned only a relatively inconsequential administrative matter of degree, on which perfect conformity to a moderately lenient statewide standard could not reasonably be expected: just how incomplete a witness’s address could be and still be acceptable—a quintessential “line-drawing” problem). Moreover, there would be no reason to begin to speculate about whether and how Minnesota law might attempt to “uncount” ballots accepted because of this excessive leniency in some localities if it turned out that no more than a handful of ballots were counted that would not have been accepted under the trial court’s standard.

Signature comparisons & the limits of feasible uniformity

The issue of “signature mismatches” is another one for which the trial court’s review would seem to operate as a cure for all, or most, of whatever local variation occurred concerning the standard for comparing signatures on ballot envelopes and ballot applications. The process that the trial court employed permitted voters to testify that the two signatures were theirs and that the local officials had wrongly rejected their ballot on this ground. Thus, if a locality used an excessively rigorous standard for comparing signatures, the trial court’s proceedings permitted the ballot to be validated despite that excessive strictness. If Coleman did not take advantage of this opportunity, the consequence of those ballots remaining rejected is obviously not the trial court’s fault.

Maybe some ballots were accepted as a result of excessively lenient standards regarding signature matching by some localities. But ballots that could not meet the trial court’s procedures obviously should not have been counted, since the voter would have been unable to testify that the two signatures were theirs. If some ballots like this slipped through, that would be wrongful, but before considering what (if any) remedy might be necessary or appropriate under state law, there would need to be in an election contest lawsuit some showing of the magnitude of the problem and how it might have affected the apparent margin of victory. As far as I can tell, there has been no showing of how many ballots might have been counted where the individual who signed the envelope was not in fact the same individual who signed the application.

Nor would it seem that a federal Equal Protection claim would likely have any traction with respect to the specific issue of signature matching. The Bush v. Gore principle, whatever it might mean (and its scope is surely debatable), at a minimum requires that a standard be capable of further precision before demanding that additional precision. The U.S. Supreme Court’s majority opinion in Bush v. Gore made at least this much clear: “in some cases [a] general command . . . is not susceptible to further refinement.”  With respect to less-than-fully-dislodged chads, however, the Court concluded that more “specific rules designed to ensure uniform treatment” were “practicable” (emphasis added) and thus required.

Signature matching, however, is much more complicated than deciding where to draw the line between dimpled, punctured, and hanging chads. It is arguably not feasible to give local election officials a set of detailed rules on how to compare signatures, so that there will be no variation in leniency or strictness among all the different set of eyes across a state that will be examining these signatures. It is not at all equivalent, for example, to giving local officials a clear command either to check or not to check the SVRS to see if a witness is registered. Here, Minnesota law permits the opportunity to bring any ballot before the trial court in the election contest lawsuit to revisit whether the ballot should have been rejected for a signature mismatch, permitting voters to corroborate their signatures, with the decision to be made by a single judicial panel. It would seem that state law could do little more to assure uniformity with respect to the ultimate evaluation of all ballots, and thus unlikely that federal Equal Protection would require anything more.

A Couple of Other Categories, Quickly Considered

With respect to one of Coleman’s categories, it is especially unclear (at least to me) how lenient or strict the trial court was. The category involves the situation in which, at the time to accept or reject the absentee ballot envelope, the local election officials cannot find the original ballot application, yet the envelope bears an official sticker from the local election board with the voter’s correct name and address. In this circumstance, it is arguably presumable that the voter properly submitted the application, which prompted the board to send the voter the envelope with the correct sticker, but that the board inadvertently has misplaced the original application. (Such administrative errors regrettably happen.)

One sentence of the March 31 order (on pages 13-14) expresses a willingness to make this presumption: “In certain instances, the Court was willing to find that the voter made an application for an absentee ballot where the absentee ballot return envelope bore a sticker containing the voter’s name and address affixed to the envelope.” But the rest of the same paragraph (as well as the remainder of the same section of the court’s opinion) seems to reject this presumption: “[Coleman] argued that a voter could not obtain an absentee ballot without first completing an absentee ballot application and that the Court could presume the existence of the application. The Court was unwilling to make this presumption.”

One possible way to reconcile these apparently conflicting passages is that the trial court was willing to “excuse” the nonexistence of an application if but only if the voter testified under oath in court that he or she had completed one. Assuming this conjecture to be correct, the trial court’s approach would seem to give Coleman the relief he would need on this point: any ballot rejected by a locality that insisted on finding the application (a standard stricter than applied in other localities) could be reviewed by the trial court—and ultimately counted—by bringing the voter in court to testify to the submission of an application. But I hesitate in reaching even this tentative conclusion on this point, because I’m not sure if that is what the trial court had in mind in this portion of its March 31 order.

One category that Coleman mentions in his appellate brief was actually remedied in the earlier February 13 order. This category is the situation in which the local election board accidently gives the voter the ballot for the wrong precinct. Coleman complains (at pages 17-18) that some localities strictly rejected the ballot in this situation, not even partially counting it for those statewide and other multi-precinct races in which the particular voter was eligible to participate, while other localities were willing to count the ballot partially in this way to rectify their own official error. But in its February 13 order (page 16, footnote 7), the trial court indicated that it would count a ballot in this situation. In other words, on this issue, the trial court adopted the more lenient local approach as the operative statewide rule and thus negated the effect of the rigid rejection policy in some localities. Thus, it is unclear why Coleman would still be complaining about the local variation on this issue in his appellate brief.

Where the Trial Court was Strict—and the Consequences of this Strictness

In contrast to the various categories discussed above, with respect to other categories the trial court—even in its March 31 order—declined to adopt a lenient standard, but instead insisted on strict compliance. For example, one of Coleman’s categories involves the situation in which local election boards incorrectly sent unregistered absentee voters the materials appropriate for previously registered absentee voters. This official error had the consequence of inducing the unregistered voters to fail to submit a registration form at the same time as they submitted their absentee ballot, whereas if the officials had acted correctly, the unregistered voters would have received the registration form with instructions on how to return it in order to have their ballots count.

In this situation, some localities accepted the absentee ballot even though the voter was not registered, reasoning that their own official error was responsible for the voter’s omission. Other localities, by contrast, maintained that even their own official error could not excuse a lack of registration, since registration was an essential prerequisite to counting the voter’s ballot. On this issue, the trial court sided with the localities that took the “rigid rule/no exceptions” approach. As the court stated in its March 31 order (at page 10): “An unregistered voter may not cast a ballot even if the voter’s failure to register to vote is the result of election officials errors or omissions regarding registration.”

The fact that the trial court took the strict approach on this issue would seem to call for a different analysis of the issue on appeal (in comparison to those issues on which the trial court adopted a more lenient approach). If the trial court was wrong as a matter of statutory interpretation to be rigid on this particular issue—maybe the registration requirement should be construed as conditioned on the absence of official error that causes non-registration—then the appropriate recourse (assuming, again, no waiver or other procedural problem on Coleman’s part) would seemingly be to remand for consideration of those ballots that were rejected by localities based on an inappropriately strict standard on this issue.

But if the trial court was correct under Minnesota law to be strict on this issue, then a different sort of inquiry potentially arises. What about ballots that were accepted by localities that applied an inappropriately lenient standard on this issue? How many such ballots were there, and do they have the potential of making a difference in the outcome of this election? The counting of absentee ballots of unregistered voters—assuming, again, that it was improper for localities to count them under any circumstances, even when the localities themselves were responsible for the voters’ failure to be registered—seems no minor matter. It’s not the same as a locality being a bit too generous on how relatively complete or incomplete a witness’s address may be as it appears on the envelope. Would state law really take the position that there never can be any remedy if localities improperly adopt policies to permit the counting of unregistered voters, when state law also takes the position that it is essential that voters be registered for their ballots to count?

On this issue, it might be useful to invoke the “felon voter” analogy used by the trial court (and others) in connection with this case. If some localities deliberately let felons vote absentee ballots, when it is clear that they are not entitled to do so, would it really be true under Minnesota law that there would be no remedy for this violation—assuming (contrary to the situation in Bell v. Gannaway, as discussed in my previous essay) a candidate had no opportunity to challenge the locality’s decision to count these felon ballots prior to their being commingled with all other ballots counted at local precincts on Election Night (including the non-absentee ballots cast in-person at those precincts)? To be sure, Minnesota law might require a candidate in an election contest lawsuit to make some showing that enough of these felon ballots were cast for the opposing (and apparently victorious) candidate, before the contest court would begin to consider what sort of remedy might be feasible, permissible, and appropriate. And, here, Coleman might have failed to make the comparable preliminary showing that enough ballots from unregistered voters were cast for Franken to trigger a consideration of the issue of what remedy might be feasible, permissible, and appropriate in this case. But that procedural repudiation of Coleman’s appeal on this point would be a very different proposition than the trial court’s categorical assertion (paragraph 142 of its final April 13 ruling) that “Minnesota law does not provide a remedy for [a] claim that absentee ballots were wrongfully accepted and counted.”

The trial court’s pronouncement seems overbroad. If 1000 felon ballots were accepted in one locality, and if there were evidence that most of these were voted for a candidate whose apparent margin of victory was less than 100 votes, and if the losing candidate had no chance to challenge the counting of these felon ballots ahead of time, then I would think the Minnesota Supreme Court would at least pause before declaring the situation irremediable. Thus, presumably the Minnesota Supreme Court will want to decide Coleman v. Franken one way or another without committing itself to such a categorical pronouncement.

The same point, by the way, can be made of at least one other issue raised by Coleman. Apparently, some localities chose not to enforce at all the requirement that a non-Minnesota witness be a notary public (or official otherwise authorized to administer oaths). A voter’s failure to comply with this requirement was not induced by official error, and it is evident from the face of an envelope whether the non-Minnesota witness did or did not provide the notary (or other official) seal. Still, some localities counted ballots in this situation. The trial court, however, like other localities, rejected ballots for this evident failure to comply with a basic requirement. It is unclear (again, at least to me) how many ballots were counted by localities that were improperly lenient in this regard. Thus, it would seem to me that the relevant issues on appeal (assuming the waiver hurdle is cleared) are whether Coleman identified enough of these ballots that they might have made a difference and whether he made any showing that these improperly counted ballots were more likely cast for Franken than for himself. As long as state law gave Coleman the opportunity to make that case, there would seem to be no Equal Protection issue to consider regarding this situation, because state law would insist on a single uniform statewide standard—it is impermissible everywhere in the state for a locality to count a ballot in this circumstance—and would provide a remedy to correct improper local deviations from that uniform statewide standard.

Devilish Details and the Ligation Risks of Ignoring Them

Delving into the facts in the way that I have done for this essay confirms my earlier belief that it is necessary for the Minnesota Supreme Court to consider each of Coleman’s nine categories one at a time, or at least to group them into clusters, depending on whether leniency or strictness is the appropriate standard for the category. If nothing else, distinguishing the situations in which state law requires leniency from those in which it requires strictness helps clarify the remedial consequences of a locality’s (or potentially the trial court’s) failure to follow state law properly in this regard. Noncompliance with an obligation to be lenient would seem to call for an opportunity in the election contest lawsuit to count the inappropriately rejected ballot, whereas noncompliance with an obligation to be strict inevitably raises a trickier remedial problem (as I’ve discussed previously). But, after reviewing all nine of Coleman’s categories, there is no reason to think that state law requires a single across-the-board answer of leniency or strictness with respect to all of them.

In this regard, I wonder whether it was strategically wise after all for Franken to lump all nine of Coleman’s categories together in his appellate brief. Even if he focused for the most part on points he believes applicable to all nine, he could have included a section of his brief that consider each one seriatim, explaining why in his view it failed on its own specific facts. That approach would have been in keeping with Franken’s own approach at trial, where he said that every absentee ballot has its own story. At least all equivalent ballots in the same situation have a similar story to tell about that particular situation.

At the same time, however, “too little, too late” may end up describing Coleman’s embrace of specificity with respect to the distinctive factual details of particular ballots and the way in which local officials treated them. It was Coleman who attempted to paint with a broad brush throughout much of the trial, treating his Equal Protection claim as a single undifferentiated whole with respect to any local variations that occurred, and asking early on for all rejected ballots to be accepted. That broad brush may come back to haunt Coleman on appeal if, now having appropriately subdivided his case into nine specific categories, he nonetheless has failed to proffer sufficient factual details with respect to the ballots within each of these categories in order to sustain his overall burden of proof as the one who is contesting Franken’s apparent victory.

When Coleman filed his opening brief in the Minnesota Supreme Court last week, initial observations were that the brief essentially just repeated the federal-law Equal Protection argument that had been the centerpiece of Coleman’s case before the trial court. To be sure, Equal Protection remains a large part of Coleman’s argument on appeal. (It would be surprising if it weren’t, and I’ve discussed Equal Protection previously.) But I was struck by how prominently issues of state law feature in Coleman’s appeal.

The Dual Significance of State Law

State law issues play two roles in the appeal. First, some of Coleman’s state-law arguments can stand on their own two feet, so to speak, independent of any federal constitutional issues. In other words, if Coleman could prevail on these state-law grounds, he could win a remand to the trial court, without the Minnesota Supreme Court having to reach the federal issues. A remand, of course, would still be a long way from Coleman’s overtaking Franken’s 312-vote lead, and I’m not suggesting that Coleman necessarily has the better of these state-law arguments—we haven’t seen Franken’s brief yet, for one thing—but a remand resting solely on state law would put the case in a different posture than one resting on federal law. It would affect, for example, Franken’s potential next moves in terms of where to go (U.S. Senate? federal trial court? state legislature? sit tight back in state trial court?) and what arguments to make.

Second, state law issues serve as a kind of “table-setter” for consideration of the federal Equal Protection issues. As I’ve indicated in some of my previous analysis of the Equal Protection argument in Coleman v. Franken, these arguments vary in character and quality depending on the resolution of antecedent state-law issues. Thus, it will be necessary for the Minnesota Supreme Court to pin down answers to multiple state-law issues before seeing whether it needs to go on to address any federal-law claims and, if so, exactly which ones. For this reason, one can expect state-law issues to be front and center in the minds of the Minnesota justices as they prepare for oral argument on June 1.

These state law issues, regrettably, are not straightforward. Indeed, as I’ve mulled them over since Coleman filed his brief last Thursday, at times I’ve found them mind-numbingly complex, and I’m someone who specializes in election law and has followed this vote-counting dispute from the beginning (meaning since Election Day, last November 4). It worries me that legal questions concerning the resolution of disputed important elections can be so complicated, since I consider it an important value in a democracy that the rules for resolving these disputes be publicly accessible and understandable. But the situation is what it is, and thus all I can do as a specialist in this field is to lay out the issues as best as I can, clarifying or illuminating them when possible.

The First of Nine Scenarios: Whether the Witness is Registered

As an initial endeavor in this regard, I wish to focus on the first of nine recurring scenarios that Coleman lists in his brief.  These scenarios all concern the examination of absentee ballots by local election officials: (1) the witness was not registered, (2) the witness’s address is missing or incomplete; (3) the voter was not registered, and so forth. (See the Table of Contents of Coleman’s brief for a complete list of the nine.) The opposite way in which the same scenario was handled in different localities—the absentee ballot counted in one place, rejected in another—serves as the predicate for Coleman’s Equal Protection arguments. But there are preliminary state-law issues with respect to each of these nine scenarios.

For each scenario, one may ask these questions of Minnesota law: (1) should that ballot have been counted on Election Night? (2) if so, but it wasn’t, is it entitled to be counted now, in an “election contest” lawsuit of which the current Coleman v. Franken is an example? and (3) if the ballot should not have been counted on Election Night, but it was, is there any available procedure, including the possibility of an election contest, to negate the wrongful counting of this ballot if (together with other wrongfully counted ballots) it causes a candidate to be identified inaccurately as the recipient of the largest number of votes entitled to be counted?

To reach a definitive answer with respect to each of these questions for each scenario, one probably needs to consider all nine. Tentative conclusions with respect to any scenario, in other words, might be revised after considering the parallel questions with respect to the other eight scenarios. Nonetheless, the scenarios are distinct enough from each other factually that they should be considered one-at-a-time, at least initially. I will consider only the first scenario here, for purposes of illustration.

In this first scenario, an absentee ballot envelope on its face is witnessed by a Minnesota resident, but the witness is not a registered voter. Coleman presents this scenario first because it is, in his words “perhaps the starkest illustration” of the different treatment that different localities gave to the same situation. Some counties apparently required their election officials to check the Statewide Voter Registration System (SVRS) to see if the witness was registered and, if not, required the officials to reject the absentee ballot. Other counties apparently adopted a policy that their officials should not check the SVRS but instead should presume the witness to be registered, and thus should count the ballot unless any non-SVRS evidence happened to materialize to override that presumption. Elsewhere, still, some counties apparently had not adopted a county-level policy on the matter, leaving it to local officials to decide what to do. As a result, according to Coleman’s brief, “in some counties there was no consistent practice, meaning similarly situated ballots within the same county were treated differently.”

As I read Coleman’s description of the facts—a description I’m not in a position to verify or refute, having not watched every day of the trial and without the Minnesota Supreme Court’s first-hand access to the complete trial record—I ask: according to Minnesota law applicable at the time, what should have happened to the ballots in this situation? Which counties or local officials did the right thing under Minnesota law, and which did not? Or is it possible that all of them did the right thing because Minnesota law gave localities the discretion to handle the situation however they wished? But if any of them acted wrongfully under Minnesota law, in either rejecting or counting absentee ballots in this situation, then does Minnesota law afford any remedy after Election Night to rectify this error, especially if the error may have caused the wrong candidate to have been identified as the winner of the most ballots entitled to be counted?

Absentee Ballot Boards or In-Precinct Examination?

As I ponder these questions, I’m particularly unclear about one factual matter. Minnesota law permits, but does not require, localities within the state to set up “absentee ballot boards” to do the work of examining submitted absentee ballot envelopes starting 30 days before Election Day. Otherwise, review of the absentee ballot envelopes occurs at each precinct on Election Night. The same statutory standards apply in both contexts, but it is possible that they might apply in different ways, given the different technical and time constraints applicable to precinct-based examination of absentee ballots on Election Night in comparison to a month-long review process conducted by an absentee ballot board.

As the trial court explicitly found (#68), precinct workers had no way to check the SVRS. If this fact explained all the variation between localities concerning the “witness registration” issue, it might make a difference to the legal analysis. But Coleman in his brief seems to be suggesting—it is a bit unclear from the brief itself—that even counties that used absentee ballot boards had different policies and practices on whether to check the SVRS to see if a witness was registered. “Most [local election officials] . . . testified they simply did not check—even if they did have access to the database.” And the trial court’s factual findings (#67) arguably support Coleman on this point, at least to some extent: counties with access to the SVRS found it logistically difficult or impossible to check the registration status of all witnesses, given the large volume of absentee ballots they faced. Moreover, insofar as Coleman claims that some counties were internally inconsistent in their treatment of ballots in this situation, he seems to be implying that the absentee ballot board within a county would vary in its own practice from time to time during its multi-day review process.

If I were a justice on the Minnesota Supreme Court, I would try to pin down factually what exactly was going on among the various localities regarding this “witness registration” scenario. Meanwhile, for purposes of discussion here, I will simply assume that counties with absentee ballot boards differed in whether they examined the SVRS to check whether a witness was registered. That assumption will permit an apples-to-apples comparison in asking the state-law question: what should these counties have done if they had been following Minnesota law properly, or did they have discretion to vary in the way that they did?

(It is unclear whether Coleman is contending that localities without absentee ballot boards, which therefore did their examination of absentee ballots at each precinct on Election Night, also varied from one another in how they handled the witness registration issue. I’m more dubious about this “oranges-to-oranges” comparison, as I’m not sure how precincts anywhere would have had the technology to check the SVRS, and again the trial court specifically found that they did not. But the “apples-to-apples” comparison of different localities with absentee ballot boards will suffice as a predicate to illustrate an analysis of the relevant state-law issues.)

What Should Have Happened to these Absentee Ballots on Election Night?

During the course of the trial in Coleman v. Franken, there was a lot of talk about the clarity of Minnesota’s statutes regarding absentee ballots, and so it surprised me to look back at those statutes and find that they are not so crystal clear (at least to me) on how to handle the “witness registration” scenario. I had expected to find that the statutes unequivocally required local officials to reject an absentee ballot if a witness was not registered, leaving only the state-law question of what (if anything) to do when local officials disobey this clear instruction.

It turns out that, while it is possible to read the relevant statutes this way, the statutory language does not compel this conclusion. It is possible, although perhaps something of a stretch, to read the statutes to yield the opposite conclusion: that local election officials throughout the state should have accepted an absentee ballot for counting, regardless of whether they had access to the SVRS, as long as the ballot envelope on its face gave no reason to doubt the witness’s registration (and there was no other extrinsic, non-SVRS, evidence to raise a doubt).

There is, however, yet a third interpretation of the relevant statutes that is possible—one which, in the end, may be the most plausible: that Minnesota law left it to local officials to decide whether or not to check the SVRS in order to ascertain whether the witness was registered. But even if this interpretation is correct, the statutes are far from clear in granting local officials this discretion. Moreover, this discretion-through-ambiguity, rather than discretion-through-clarity, might be relevant in analyzing a federal Equal Protection challenge to the local variation that occurred as a result of this discretion.

A Look at the Relevant Statutes

Section 203B.12 of Minnesota’s statutes is the one that governs the examination of absentee ballots envelopes to determine whether the ballots should be counted or rejected.  But one must read this provision in relationship to section 203B.07 to determine what to do when the witness’s portion of the certificate appears valid on the face of the envelope but the witness is not a registered voter.

Section 203B.12 speaks in terms of the duties of the precinct officials who examine the absentee ballot envelopes on Election Night, but according to section 203B.13 the same duties apply to the members of an absentee ballot board where one has been established. In either case, the local election officials are to “mark” an absentee ballot “Accepted” if they are “satisfied” (emphasis added) that, among other requirements, its “certificate has been completed as prescribed in the directions for casting an absentee ballot.” Conversely, they must mark it “Rejected” if they “find” that it failed to meet this requirement.

Section 203B.07, in turn, speaks to the content of “the certificate” on the absentee ballot envelope, including the portion to be filled out by the witness. This provision requires “the certificate” to “contain a statement signed by a person who is registered to vote in Minnesota,” unless the statement is notarized by a notary public or the equivalent. The witness’s “statement” must specifically attest to three conditions: (1) the ballot was initially blank; (2) the voter completed it in private (or, where applicable, with appropriate assistance); and (3) it was sealed in its secrecy envelope. There is no requirement, however, that the witness’s statement must attest to the witness’s status as a registered voter. Moreover, the rules and forms specified by the Minnesota Secretary of State (pursuant to its statutory authority to prescribe such rules and forms) provide only that a “non-notary witness” provide a Minnesota address.   (A sample envelope is on the Secretary of State’s website.)

The key statutory word, upon reflection, seems to be “satisfied” in section 203B.12, with the “completed as prescribed” phrase of the same section playing a subsidiary role. Are the local election officials entitled—or even obligated—to be satisfied if the envelope on its face has been filled out correctly with the witness’s name, address, signature, and date? Or, instead, in order to be satisfied, are the officials obligated to take the extra step of checking the SVRS?

Does it matter exactly what these officials are supposed to be satisfied about? Are they supposed to be satisfied that the witness is in fact registered? Or, instead, are they only required to be satisfied that the certificate on the envelope has been “completed” in the form “prescribed”?

In this regard, it is worth comparing the officials’ obligation with respect to the witness portion of the certificate and their obligation with respect to the absentee voter’s own registration status. A separate requirement in section 203B.12 does require the officials to be satisfied that the voters themselves are in fact registered—not merely that they completed the form correctly. But the statutory language regarding the witness concerns only satisfaction about the certificate itself. It is possible, therefore, to construe this statutory language to mean only that the official needs to be satisfied that the witness portion of the certificate looks in order on its face.

The plausibility of this interpretation is enhanced when we remember that section 203B.12 is written specifically for precinct workers, with absentee ballot boards having to conform to the same precinct-tailored standard. Since it is not possible for precinct workers to check the SVRS, they can’t be expected to do so. Precinct workers, by the way, can check a voter’s registration status without access to the SVRS by examining their poll books (supplemented by Election Day registrations at the precinct itself). But precinct workers without access to the SVRS have no way of knowing whether a witness is registered.

A Statutory Preference for Statewide Uniformity or Local Discretion?

Here’s where interpreting the statutory language starts to get especially tricky. If absentee ballot boards are supposed to be held to the same statutory standard as precinct workers when examining absentee ballot envelopes, then maybe absentee ballot boards should not be permitted to check the SVRS to see if a witness is registered even if these boards have that technological capacity (since precinct workers don’t). On this view, absentee ballot boards are obligated, not merely entitled, to look only at the face of the certificate to see that the witness completed it correctly. (This view would permit the boards to examine the SVRS to verify a voter’s registration, since the board would not have the poll books that the precinct workers would have, and the SVRS would function as the board’s equivalent method of checking voter, but not witness, registration.)

There are other statutory indications that Minnesota law favors the uniform treatment of comparable absentee ballots statewide. Section 203B.125, for example, calls for the Secretary of State to make rules for the examination of absentee ballot envelopes under 203B.12. These rules, presumably, would apply the same to both in-precinct and board examination. The Secretary of State’s rules on absentee ballots, however, do not address the specific situation under discussion here.

Nonetheless, in the absence of clear guidance from the statutes themselves or the Secretary of State’s rules, it would seem that Minnesota law leaves it to localities with absentee ballot boards to decide whether to check the SVRS to see if a witness is registered. After all, the law undeniably permits localities to use absentee ballot boards in the first place, with all the administrative benefits that doing so entails. If having an absentee ballot board permits a locality to verify that a witness is registered—and it is undeniable that section 203B.7 requires that the witness be registered—then why shouldn’t a locality be entitled to take advantage of that extra administrative benefit?

Moreover, one inevitably comes back to the word “satisfied,” which has a connotation of discretion. If an absentee ballot board would not be “satisfied” that the certificate conforms to the requirements of section 203B.7, including the requirement that the witness be registered, without checking the SVRS—then is not the board entitled to use its available resources to investigate the matter to its satisfaction? Without a clear directive putting a check of the SVRS off-limits, the structural formulation of section 203B.12 would seem to leave it in the hands of local officials to decide what to do in order to be satisfied as required. (Maybe the Minnesota Supreme Court can get some additional guidance on how the word “satisfied” is used in different areas of statutory law governing the conduct of state and local officials.

But this analysis raises additional questions. Must the locality—county or municipality—let the members of the absentee ballot board decide what steps to take in order to be satisfied? Or can the locality, by rule, constrain the board’s discretion to act in a specific way? Could this rule call for the examination of the SVRS for some, but not all, absentee ballots? For example, as a time-saving measure, could the rule specify that the board check whether the witness is registered for every tenth ballot? Or only ballots cast by voters living in certain neighborhoods, where fear of fraud might be higher? (This particular selectivity seems worrisome.)

In October 2008, would it have been possible to know, for each locality with an absentee ballot board, what its policy was regarding examination of an envelope to ascertain whether a witness is registered? Was that policy written down? Or, at least in some localities, was the absentee ballot board permitted to change its policy or practice during the period in which it was reviewing absentee ballot envelopes, depending on the day-to-day volume of envelopes to review?

These sorts of questions are relevant, first, to figure out just how much discretion localities are entitled to have under Minnesota law in conducting the examination of envelopes called for in section 203B.12 and, second, to consider the Equal Protection implications of whatever that scope of discretion turns out to be. (They are also relevant to the laches point that Rick Hasen appropriately raises: if it was impossible to know in advance a particular locality’s policy regarding the “witness registration” issue, would it be appropriate to bar a candidate for challenging that policy once it materialized in practice during this election?)

The Remedial Consequences of Statutory Interpretation

If local officials acted properly within their scope of discretion under state law, then there is no wrongful conduct to remedy even if some of them rejected ballots that others would have accepted, and vice versa. Only if this exercise of discretion were a violation of federal law would a remedial issue arise. Thus, to take this simplest illustration, if Locality A required its absentee ballot board to check the SVRS, while Locality B required its absentee ballot board to ignore the SVRS—but if both localities were acting within the scope of their discretion under the relevant statutes—then there would be no state-law basis for challenging their decisions (in this Coleman v. Franken election contest lawsuit, or otherwise).

However, if the better interpretation of the relevant statutes were that the state-law value of uniformity between absentee ballot boards and in-precinct examination of absentee ballots requires that all boards confine themselves to examination of the certificate on its face in same way that precinct workers would do, then various remedial issues arise. First of all, any ballot rejected by an absentee ballot board in conflict with this uniform standard should have been counted on Election Day. And if it should have been counted on Election Day, then presumably an “election contest” lawsuit (like Coleman v. Franken) is an appropriate procedural vehicle to correct that administrative error.

At times in its opinion, the three-judge trial court seemed to indicate that it was holding itself to a higher standard under the relevant Minnesota statutes than it expected of the local election officials in their own initial administrative review of absentee ballot envelopes. Only if a witness is in fact registered can an absentee ballot be counted in an election contest, the trial court appeared to say. But this standard for counting ballots in an election contest seems too stringent if (but only if) Minnesota law required that same ballot to be counted on Election Day. Assuming for the moment that the obligation of all election officials in the state (whether in precinct or on an absentee ballot board) was to count an absentee ballot if the witness’s portion of the certificate was complete on its face (and all other requirements were met), then presumably the election contest exists to correct the breach of this obligation and thus to add to the total those ballots that were wrongfully rejected. To be sure, there may have been an underlying defect with these ballots—their witnesses were not registered as they were supposed to be—but if local election officials were obligated to count these ballots anyway, despite this underlying defect (which, after all, does not concern the validity of the voters themselves), then both the candidates and the electorate have been deprived of a valid count of the votes in accordance with the requirements of Minnesota law. The failure to count ballots that were obligated by state law to be counted, especially if this failure makes a difference in which candidate is declared the winner, would seem to be an appropriate predicate for an election contest.   But, of course, this is an issue of state law that, in the absence of complete clarity from the relevant statutes and precedents, could go either way.

There is also a federal Due Process question lurking in the background of this state-law remedial issue. As Rick Hasen has observed, if the Minnesota Supreme Court were to say in the Coleman v. Franken appeal that certain absentee ballots should be counted under state law, and if a federal court were to consider that interpretation of state law to be a change from how the same state statutes would have been interpreted at the time the ballots were rejected, then this change-in-interpretation during the vote-counting process presents a serious Due Process issue. But if the Minnesota Supreme Court were credible in saying that its interpretation is not a change, and that the ambiguous statute would have been interpreted in the same way last November, then the Due Process concern diminishes.

Does State Law Provide a Remedy for Wrongfully Counted Ballots, Which Should Have Been Rejected?

The hardest state law issue in Coleman v. Franken is one that, perhaps surprisingly, might end up not arising in the specific contest of the “witness registration” scenario. Before undertaking this essay, I had assumed that it would.  As indicated, I figured that local officials throughout the state would be obligated by Minnesota law to reject any absentee ballot if the witness was not registered, and thus there would arise the difficult question of what remedy might exist for ballots wrongly counted in violation of this obligation.

But if the above statutory analysis is sound, then local officials—even those on absentee ballot boards—were not required to reject ballots if the witness portion of their certificates were complete on their face. (Again, either localities had discretion to accept or reject, or localities were obligated to accept them if they were complete on their face.)

Still, it is worth considering briefly the state-law remedial issues if local officials had been obligated to reject these ballots, but counted them in violation of that obligation. For one thing, it is still plausible to interpret the relevant statutes as entailing that obligation for absentee ballot boards. (On this view, since they can check the SVRS, they must; whereas obviously precinct workers can’t be expected to do the impossible.) Moreover, similar remedial issues might arise with respect to any of the other eight scenarios identified in Coleman’s brief. In other words, even if there is local discretion with respect to this particular scenario, or the obligation in this context is to count the ballot, other scenarios may present the opposite conclusion: for example, a non-discretionary obligation to reject an absentee ballot envelope when the voter is not registered.

For those who have been following Coleman v. Franken closely, the Minnesota Supreme Court precedent of Bell v. Gannaway, 227 N.W.2d 797 (1975), has seemed a large obstacle to any state-law remedy for a wrongfully counted absentee ballot. Indeed, the three-judge trial court repeatedly and explicitly cites Bell for this proposition. But focusing on the role that absentee ballot boards play in this case, in contrast to precinct workers, makes me wonder about the applicability of Bell as a precedent. I’m not sure that Coleman’s brief did as much as it might have to highlight this point.

The relevant holding of Bell involved a single—“and crucial” (p. 801)—absentee ballot counted at a precinct despite lacking the voter’s signature on the envelope. The court ruled that the lack of signature disqualified the ballot and that precinct workers should have rejected it because of its facial defect, but that a candidate was precluded from raising this breach in an election contest when the candidate failed to exercise an opportunity to challenge the counting of the ballot at the precinct. Coleman argues that this “waiver” holding in Bell should not apply to his election contest, because he did not have a similar opportunity to challenge the initial decision of local officials to accept or reject absentee ballots. This argument might have been made more forcefully by pointing out that the lack of an opportunity to challenge is especially true where absentee ballot boards make this decision. Not only is there no provision in Minnesota law for a candidate or political party to place a challenger before an absentee ballot board—thus distinguishing the situation from a precinct where partisan challengers may be present—but the successor statute to the one relied on in Bell, section 204C.13 subd. 6, has no applicability to the proceedings of an absentee ballot board. Instead, it concerns what happens to ballots at the precinct. This statute provides.

At any time before the ballots of any voter are deposited in the ballot boxes, the election judges or any individual who was not present at the time the voter procured the ballots, but not otherwise, may challenge the eligibility of that voter and the deposit of any received absentee ballots in the ballot boxes.

Whatever else this statutory language may mean—and its “but not otherwise” clause, moved since Bell, is particularly ambiguous—it does not seem to provide an opportunity to challenge an absentee ballot board’s refusal to undertake certain inquiries before marking an absentee ballot “Accepted” and depositing it in the appropriate ballot box to be counted on Election Night. Rather, in this situation, the absentee ballot has already arrived from the board marked “Accepted,” and thus it is too late at the precinct to say that the ballot should not be counted.

Just suppose, for example, that an absentee ballot board never checked the SVRS to see if a witness was registered. A candidate had no opportunity to challenge the absentee ballot board’s decision before it was made. Nor does the candidate or a political party have an opportunity to challenge that same decision on Election Night when the “Accepted” absentee ballots are counted at the precinct. For one thing, there would be no technological capacity for the precinct workers to undo the absentee ballot board’s decision not to examine the SVRS.

Thus, in its consideration of the Coleman v. Franken appeal, if the Minnesota Supreme Court ever gets to the point where the state-law issue of whether the Bell waiver analysis applies, the issue of that precedent’s applicability is at least more complicated than the trial court’s analysis would indicate. There also would be other difficult remedial issues to consider if the court, going down this particular path, got past the Bell waiver issue: for example, may the court declare the winner of the election unknowable if it were to find that the number of ballots that were counted, but were obligated to have been rejected, is greater than the winning candidate’s margin of victory? Or, instead, does the election contest fail because there is no evidence on which candidate benefited from these unlawful ballots (the conclusion reached in the 2004 Washington gubernatorial election)?   But I have touched on those issues in previous commentary, and I will leave any further analysis of them to another occasion.

Some Concluding Observations

What should one make of all this uncertainty over the state-law issues in this appeal? I’ve only considered the first of the nine scenarios identified by Coleman, and it seems more than complicated enough. Perhaps the issues will seem clearer after Franken’s brief and Coleman’s reply.  But I’m not betting that complete clarity will reign in time for oral argument.   And, of course, there are still the federal constitutional questions, even after all the state law issues are resolved (as well as other, non-Bell, issues of procedural bar, which might preclude reaching some of these issues on the merits).

One begins to wonder if practical considerations should overtake rigorous legal analysis in the minds of the Minnesota Supreme Court justices. According to opinion polls, the public is clamoring for this disputed election to be resolved. A remand to the trial court might spark a public outcry.

I, for one, didn’t think there needed to be an appeal in the first place. As I’ve written elsewhere, the demands of democratic legitimacy can be satisfied by a fair trial before a well-structured panel, as this three-judge court was. In the context of a major statewide election, where the need for closure is especially pressing, democratic legitimacy does not demand “de novo” review of the relevant legal questions by a second multi-member judicial panel, however fair it also might be in its consideration of the very same questions.

Still, Minnesota law undeniably permitted this appeal. Because it did, the Minnesota Supreme Court should adjudicate the appeal according to law, not politics. Therefore, as difficult and complicated as both the state and federal law issues in the appeal may be, the court’s justices must grapple with those issues as best they can using the impartial methods of judicial inquiry.  The justices must follow the law wherever it leads them, even if that place is an uncomfortable one politically.