Friday’s unanimous ruling in Coleman v. Franken is only an interim victory for non-partisan judicial consideration of election contests; there are many more steps before the fight over Minnesota’s U.S. Senate seat is resolved.

Last Friday evening, as many folks who follow Election Law know, the three-judge court in Coleman v. Franken issued an important ruling that narrows the scope of ballots remaining in dispute. Regrettably, most of the media coverage of the decision—as well as the blogosphere commentary on it—has been about how it affects the chances of the two candidates to prevail. (Prevailing sentiment: big win for Franken since the court unanimously agreed with his legal position for the most part; some contrarians claiming it doesn’t diminish the number of ballots significantly.) Relatively little discussion has been devoted on whether the decision is in the public interest.

It is, and it is important to understand why.

It is Exhibit A on why Minnesota 2008 is not Florida 2000.

There have been many overstated comments from defensive Minnesotans, including some made by this three-judge panel itself, on how Minnesota differs from Florida in administering its voting laws. The fact is that Minnesota’s reputation for having a “gold standard” electoral system has been tarnished somewhat as a result of the scrutiny of this ongoing recount-plus-contest. To his credit, Secretary of State Mark Ritchie is moving to reform the administrative weaknesses that have emerged, including those over the handling of absentee ballots (which is the current focus of the court proceedings).

Still, the work of the three-judge court confirms that, in one absolutely crucial respect, Minnesota does differ from Florida: its judicial rulings over the counting of ballots do not appear to be a partisan effort to tilt the legal playing field to assist a favored candidate.

Recall that the key decision of the Florida Supreme Court in 2000, the one that was reversed by the U.S. Supreme Court in Bush v. Gore, was a 4-3 ruling to require a statewide manual recount to look at even “dimpled chads” according to an amorphous “intent of the voter” standard. Right or wrong, Republicans viewed the majority opinion as an effort by Democratic judges to steal the election for Al Gore.

The ensuing U.S. Supreme Court decision produced no better outcome from a “rule of law” perspective. A split 5-4 ruling to stop the Florida judiciary from engaging in any more recounting of ballots, even under a more precise and constitutionally acceptable standard—this majority opinion was viewed by many Democrats (again, right or wrong) as an attempt by Republican judges to steal the election for George Bush.

Had those two courts in 2000 been confronted with a case involving, not dimpled chads, but rejected absentee ballots presenting the issues ruled on by the three-judge court in Coleman v. Franken, is there any reason to believe that those two courts in 2000 would have done a better job? Assume, in other words, that Al Gore as the contestant back then had been making the same arguments over rejected absentee ballots that Coleman, the current contestant, has been making. Would the courts in 2000 have been unanimous in their rulings?

I don’t think so. On the contrary, there is every reason to believe that the Florida Supreme Court would have split 4-3 in favor of Al Gore, even if the dispute back then had been over rejected absentee ballots—the majority of that court would have adopted the argument that it is necessary to find flexibility in the statutory rules to prevent inequitable disenfranchisement—and the U.S. Supreme Court would have voided that decision by a 5-4 vote and ordered an end to all further consideration of those ballots.

Another way to put this point is that it is easy to imagine other courts around the country, if faced today with the same case as Coleman v. Franken, releasing a very different decision than the one that came down on Friday. In many states, a three-judge panel would have split 2-1 in this case, unless all three judges came from the same political party, and the same point would be true of three-judge federal courts sitting in those states.

If you don’t believe me, just read Florida NAACP v. Browning, Secretary of State, a 2-1 federal court decision in April 2008 concerning Florida’s voter registration system. Eight years after Bush v. Gore, the courts are still dividing along party lines over Florida’s election laws. And there have been similarly divided rulings in cases involving Ohio’s election laws.

It is not as if Friday’s ruling was the only possible outcome the three-judge court could have reached. On the contrary, there was a plausible argument supporting Coleman’s position. Any judge sympathetic with that position easily could have written an opinion to justify that outcome. (Some background on the legal issues that the court addressed in Friday’s ruling, written beforehand, helps show the possibility of the court going either way.)

To be sure, Coleman v. Franken is confounded by the fact that the partisan Republican position happens to require embracing the ideologically liberal view of voting rights, whereas the partisan Democratic position requires adopting the ideologically conservative view of voting rights. Judges might well be conflicted between their partisan and ideological motivations.

But it is not as if judges in election cases always follow their ideological rather than partisan instincts, when the two conflict. On the contrary, one of the reasons why the Justices on the U.S. Supreme Court came in for such intense criticism—including specifically the criticism of hypocrisy—was that the majority ruling to prohibit Florida from conducting any further recounts was so patently contrary to the “states’ rights” ideology of the five Justices who took that position. Seeking a victory for the home team seemed so clearly to override ideological purity in this instance.

What is so significant about Friday’s unanimous ruling is that the three judges appear to be trying hard to avoid letting either partisanship or ideology affect their decisions in this case. They appear, to their credit, to be attempting to “de-personify” their decisions, meaning that it doesn’t matter who personally happens to sit as judges in this case. Rather, it is the Law objectively that is dictating the outcome, not any of their subjective points of view.

Of course, their self-conscious effort to implement the law objectively, without taint of partisanship or ideology, is a product of their mutually orchestrated appointment by Justice Alan Page. They were known at the outset to be one Democrat (DFL), one Republican, and one Independent appointee. Therefore, they have striven to prove that this background is irrelevant to their decisions.

The three of them have come into some criticism for moving the contest trial slowly. But I say that their deliberateness is justified to the extent it is necessary to preserve their unanimity. It’s not their fault that the contest was not filed until January 6, essentially two months after Election Day. That’s the fault of Minnesota’s statutory rule that prohibited the preliminary recount from definitively resolving the issues that now must be addressed in the contest. Nor is the three-judge court to blame that Franken cannot get a temporary certificate while the contest continues; again, that’s the fault of existing Minnesota statutes unless and until either the state’s supreme court or its legislature decide otherwise.

The three judges themselves recognize the need to go as fast as possible, which is why they ordered the briefing and argument that led to Friday’s ruling.

To be sure, the case is far from finished, and the three judges may stumble before it ends. Indeed, at least one huge issue remains in front of them, in part a product of Friday’s ruling, as evidenced by Coleman’s effort today to get them to reconsider that decision.

The reasoning they unanimously adopted leads to this conundrum: apparently hundreds of ballots have already been counted that do not meet the definition of a “legal vote” under Minnesota law, as interpreted in Friday’s opinion. Coleman uses this conundrum to argue that, in the interest of Equal Protection as required by the U.S. Constitution, the definition of a “legal vote” must expand to make these previously counted ballots qualify—and then the court must count all the as-yet-uncounted ballots that are equivalent. I have previously analyzed this argument, and the point here is not to evaluate its merits. Rather, Coleman is correct that the court must address it one way or the other.

Either the court must say that Minnesota law must yield to the higher authority of U.S. constitutional law or the court must explain why it need not: perhaps because Coleman procedurally waived this constitutional argument, or because the court considers it an incorrect understanding of the U.S Constitution. But the court cannot ignore this issue before its final judgment. (At the very least, the court must clarify why it thinks it previously has disposed of this issue.)

Indeed, I would go further than Coleman apparently has pressed so far in regard to the current conundrum. Even under Minnesota law, without regard to federal Equal Protection, there remains an unresolved issue of what to do with previously counted ballots that are not “legal votes” according to the court. While it is physically impossible to extract them from the count that produced Franken’s 225-vote lead, it does not follow necessarily that there are no other available remedies under state law (short of counting more ballots that also are not “legal votes”). One possibility might—and I stress might, because it requires a thorough review of Minnesota statutes and judicial precedents that I have not done—be to declare that the court is unable to identify either candidate as the winner of more “legal votes” (because the existing count is inevitably tainted, or polluted, by the inclusion of too many ballots that are not “legal votes”).

[Update (2/18/09):  A reader of this comment has kindly raised the possibility that, at least with respect to the 933 absentee ballots counted by the Canvassing Board, record-keeping procedures would permit them to be “uncounted” if the three-judge court were to determine that any of them are not legal votes.  These ballots, however, were subject to a Stipulation entered by the parties and the three-judge court that would appear to permit the “commingling” of these ballots with all other counted ballots, thus ending the special record-keeping procedures applicable to them.  It is unclear as of this update whether that “commingling” has yet occurred.  In any event, it is my understanding that with respect to any absentee ballots counted on Election Day, they have already been “commingled” in this sense and thus cannot be physically extracted from the pool of counted ballots.]

Even if the court lacks the power to order a new election, it could simply release a final judgment saying that it is unable say which candidate received more legal votes, and leave it to other parts of the state government to figure out what to do in this situation. Again, I emphasize that I’m not necessarily saying that would be the right course of action for the court to take even if the facts at trial eventually show that the number of counted ballots that are not legal votes is larger than 225 (or whatever the lead ends up being). I’m saying only that the court would need to tackle this state-law issue, and resolve it one way or the other (or rule it procedurally waived), before the court could consider its work complete (assuming that Coleman got around to raising this issue if his Equal Protection argument fails).

We should hope that the court is able to maintain its unanimity and objectivity as it confronts these additional issues, which are much harder even than the statutory interpretation it engaged in for Friday’s ruling.

As I said at the outset of this fight over counting the votes in this U.S. Senate election, one side or the other ultimately has to lose. What is important is how they lose.

In Florida 2000, the strong—and distasteful—impression was left that “who lost” depended on which side controlled the highest court. It was not a fair fight, if the ultimate umpire belonged to one of the two teams.

What’s important about Friday’s ruling is that it indicates that this court will be resolving the case before it as best as it can impartially according to the Law, and not because a majority of its members are rooting for one team over the other. Let’s hope that the rest of its rulings leave the same impression.

This comment was originally written for MinnPost and is available at this link there.

The court will need to work hard to appear impartial and principled in handling the nineteen fact-patterns it has put to the candidates.

Tuesday, the court asked Coleman and Franken whether, in their view, absentee ballots within nineteen specified categories should be counted. Yesterday, the two candidates submitted their responses, and they could agree on only four of the nineteen. If you are keeping score, these are:

• #3 (no notary seal);
• #10 (no signature on registration form included with ballot)
• #15 (ballot delivered late by agent)
• #18 (no registration, not caused by official error)

In these four circumstances, both sides agreed that the absentee ballot should not count.  (See Coleman’s brief here and Franken’s brief here.  The contest case page is here.)

Otherwise, Coleman generally argued for counting the ballots, with Franken arguing for rejecting them. (No surprise, given Coleman trailing Franken by 225 votes.) Interestingly, they switched positions with respect to one category: #4 (no registration, because official error failed to provide registration form). In this one circumstance, Franken took the more lenient position than Coleman. As Franken’s brief put it, in this situation the voter “has no practical means by which to correct the error,” has done all that is possible to demonstrate eligibility (by otherwise “properly completing” the absentee ballot envelope with signature, address, and a witness), and thus should not be disenfranchised for “statutory noncompliance . . . beyond the voter’s control.” Coleman, conversely, took the position that registration is a mandatory prerequisite, and thus if a previously unregistered citizen mails an absentee ballot without an accompanying registration form, even if the citizen fails to receive that form because of official error, that citizen is out of luck: “the voter simply is not registered and therefore cannot cast a lawful ballot.”

This role reversal is telling because it illustrates the difficulty of balancing, on the one hand, a sense of basic fairness to the voter and, on the other, the need to enforce fundamental rules of the voting process. Even with their own respective self-interest to “guide” their submissions to the court, each side got tripped up a bit on what to tell the judges. This clumsiness caused both sides to make what could appear to some as arbitrary distinctions.

For example, since Franken is willing to say that fairness trumps strict compliance when the voter does not receive the necessary registration form, why does he argue that fairness cannot prevail when the official error causes the voter to receive the ballot for the wrong precinct (category #5)? “The precinct requirement is critical,” Franken says, but there was “no practical means” for the voter to correct this official error (to quote Franken’s language from above). Since the ballot has yet to be counted, the relevant precinct rolls can be checked to make sure that there is no double-voting. So it is unclear why Franken would excuse lack of registration caused by official error, but not a wrong-precinct ballot that was “beyond the voter’s control” (to quote his own language again).

But if Coleman cannot excuse a voter’s lack of registration when it’s not the voter’s fault, why can he excuse voting in the wrong precinct, when Minnesota law says that “[a]n eligible voter may vote only in the precinct in which the voter maintains residence,” just as Minnesota law requires voters to be registered? It would be “manifestly unfair,” Coleman says, to punish voters in this situation. But, again, why does fairness trump the rule here, but not with respect to the registration rule—where disenfranchisement because of official error seems, at least to some, equally unfair?

I belabor this point, because the court will need to decide how to balance these two competing interests, fairness and the need for rule-compliance, with respect to each of the nineteen categories. Ultimately, it does not matter if the candidates’ positions on these issues appear arbitrary. We don’t expect the candidates to be principled (a regrettable state of affairs, perhaps, but reality nonetheless). Yet we do expect the judges to be principled, and it will be even trickier for them to do this balancing, since they don’t have obvious self-interest to “guide” their answers.

Here’s to hoping that the judges can maintain their current track record of perfect unanimity. It will start to look arbitrary if the court ends up all over the place based on a series of shifting 2-1 votes, depending on how each individual judge conducts the balance with respect to each of the nineteen categories. And it will be even more disconcerting if a 2-1 split in the court for the most part tracks the positions of the two candidates on these categories; in that situation, it would start to appear that the court has “two Coleman judges and one Franken judge,” or vice versa. Therefore, if the judges start out with an initial disagreement on their intuitions on how to conduct the balancing with respect to any of the disputed categories, they would do well to refrain from announcing a decision until they give themselves sufficient chance to resolve their internal disagreement.

One more observation: the judges would also do well to strive, so far as humanly possible, to decide each of these nineteen categories as if the candidates’ names were generic Smith and Jones, not Coleman and Franken, and they had no idea of the two candidates’ party affiliation or political philosophy. I say this knowing that Ohio last year had a case raising essentially identical issues, in which the Democrats were making the same arguments that Coleman now makes, and the Republicans were arguing just as Franken is now. There, as here, one of the issues was whether a ballot could count if the signature was on the envelope, but not on the correct line for the signature (here it’s category #16). In Ohio, the Democrats argued for counting the ballot in this situation, as Coleman does, whereas the Republicans made the same strict-compliance argument that Franken now makes.

Similarly, Coleman argues that if a signature is missing in a situation where an official examined the document and overlooked the missing signature, then the voter was induced into making the mistake, since the official should have caught the error and required its correction (see Category #8). This is exactly the same argument that Democrats made with respect to approximately 1000 ballots that were in dispute in connection with the 2008 election for Ohio’s 15th congressional district. The Ohio Republicans argued just the opposite. The voters were responsible for their own errors in this situation, they said, and the signature requirement exists to protect against the possibility of fraud, and its non-compliance should not be excused. Franken’s submission echoes exactly this Republican argument: “This [signature requirement] is an important tool for preventing potential fraud or abuse. . . . If a voter errs . . ., an official’s failure to notice and correct the voter’s error does not excuse the requirement.”

In Ohio, confidence in the ability of judges to settle this kind of dispute impartially and objectively was shaken when, initially, a Democratic federal district judge sided with the Democratic position to count the disputed ballots (before being reversed on appeal for lack of proper jurisdiction over the case) and then, subsequently, a Republican-dominated Ohio Supreme Court ruled in favor of the Republican argument against counting these ballots. It is both for the sake of the Minnesota judiciary’s reputation, as well as for the integrity of Minnesota’s electoral process, that the current three-judge court presiding over the Coleman-Franken trial must be able to demonstrate detachment and impartiality in a way that the judicial system in Ohio was not. The Minnesota judges know this, having said at the outset: “The Court strives as its ultimate goal to conduct the proceedings in such a way that the public will have faith in our electoral process and confidence in our judicial system” (Jan 22 Order denying Motion to Dismiss; emphasis added). But, to invoke the cliché, easier said than done.

What is difficult for the current three-judge court is that both sides of the argument are plausible—whether made by Democrats or Republicans, in Minnesota or Ohio. Indeed, these same two basic arguments have been made in election cases since at least 1792, when our Founding Fathers squared off in a dispute over the election for governor in New York. The emerging Democratic-Republican Party (with Aaron Burr in the lead) took the “strict-compliance-with-election-rules-to-avoid-risk-of-fraud” position that Franken now takes, while the Federalist Party (with John Jay at the forefront) argued the “flexible-application-to-avoid-disenfranchisement” position that Coleman now advocates.

What is important is not which position the current court takes regarding this ancient jurisprudential debate about the enforcement of election laws. Rather, whichever position it takes, what matters is that its ruling appear nonpartisan and rooted in a principled application of Minnesota law. There should be no doubt that the court would take the identical position were the arguments of the two sides in this case reversed, and that its precedent will be applied impartially in future cases regardless of which candidates or parties down the road might be favored by adherence to this ruling.

The best—and perhaps only—way the current court convincingly show the public that its ruling on these nineteen categories is indeed principled and nonpartisan is that if it manages to maintain its as-yet-unblemished unanimity.

Perhaps the most interesting development that emerged from this afternoon’s series of oral arguments in Coleman v. Franken is the potentially rather confusing relationship between (a) Coleman’s argument based on the federal Equal Protection Clause and (b) how to apply Minnesota’s statutory rules regarding absentee voting.

In my judgment, the most interesting development that emerged from this afternoon’s series of oral arguments in Coleman v. Franken—other than the fact that the three-judge panel, by their questioning, clearly seemed more sympathetic to Franken’s presentation than to Coleman’s—is the potentially rather confusing relationship between (a) Coleman’s argument based on Bush v. Gore and the federal Equal Protection Clause and (b) how to apply Minnesota’s statutory rules regarding absentee voting.

I’ll endeavor to make this initial impression of the oral arguments as concise and non-technical as I’m able. Much more could, and eventually should, be written on this interesting interrelationship. But a relatively broad brush might be useful for this first sketch.

First of all, the federal Equal Protection issue might no longer be in this case. That’s the position that Franken’s attorney, Marc Elias, took. He argued that the three-judge panel, in its February 3 Order on Coleman’s Motion for Summary Judgment, already rejected Coleman’s Bush v. Gore claim on the merits. (I’ve addressed that ruling, and whether it has that implication, previously.) But, as Elias also observed, Coleman’s attorneys repeatedly keep mentioning federal Equal Protection and this court’s obligation to comply with federal constitutional standards, and they certainly did so again throughout today’s series of oral arguments. So, maybe the federal Equal Protection issue is still in this case—at least until the court rules definitively one way or the other.

How the Coleman attorneys make the federal Equal Protection argument sometimes seems as if it shifts from time to time. Occasionally, it is a straightforward Equal Protection argument in its purest form: various local counties transgressed Minnesota’s statutory law on absentee voting by counting ballots that they shouldn’t have, and federal Equal Protection now requires that essentially equivalent absentee ballots in other localities must be counted, even though doing so certainly is not compelled by Minnesota law alone and arguably transgresses Minnesota law as much as the initial mistaken counting of ballots that sets the predicate for the Equal Treatment (i.e, Equal Protection) claim. But federal Equal Protection trumps the state court’s instinct to comply with state law, since it’s a higher authority under the Supremacy Clause of the U.S. Constitution. In essence, here the Coleman argument is that “two wrongs” really do make the only “right” that is feasible at this point; as his lead lawyer, Joe Friedberg, repeatedly says, it’s a point about the remedial power and obligation of the court.

The Coleman side acknowledges that there is a de minimis exception to this argument. If one ballot somewhere in the state is wrongly counted by a local official in violation of Minnesota’s absentee ballot statutes, it does not follow that thousands of previously rejected ballots that are just like it must now be counted. But they say that can demonstrate that hundreds or thousands of absentee ballots have already been counted in derogation of the relevant Minnesota statutes, and when the problem reaches this magnitude, then federal Equal Protection demands the counting of hundreds or thousands of additional ballots that are just like the ones already mistakenly counted.

I think that the Coleman side would acknowledge that there are further limits to their “pure” federal Equal Protection argument. For example, even supposing hypothetically that it turned out that hundreds or thousands of non-citizens or felons had managed to cast ballots that were counted in violation of Minnesota law, I don’t think they would claim that hundreds or thousands of more ballots cast by non-citizens or felons should now be counted even though these ineligible ballots were correctly caught and rejected by other local officials. There is a basic eligibility prerequisite to Coleman’s federal Equal Protection claim.

But that’s where matters start to get a bit murky, at least to me. Is being a registered voter a basic eligibility prerequisite to the federal Equal Protection claim, like being a citizen and a non-felon? (I think Coleman would say yes, but not 100% sure.) Is signing an absentee ballot envelope a basic eligibility prerequisite because it’s the voter’s sworn statement of eligibility? (Again, I think yes.) Now, what about the requirement of the witness’s signature, since Minnesota law demands a witness to verify the eligibility of an absentee voter? At this point, one starts to see that the “pure” Equal Protection claim is not so purely a matter of federal constitutional law after all, and starts to bleed into considerations of Minnesota’s statutory law. And, it is important to remember here that “official error” is irrelevant to this basic eligibility prerequisite point: there are some things a voter must comply with (like being a citizen and perhaps signing the absentee envelope) that are absolute, regardless of the amount of official error that let equivalent voters in improperly.

Equal Protection cannot be a mechanism to compound official error with respect to these basic eligibility requirements, whatever they may be. And it is unclear, again at least to me, exactly what source of law one turns to in order to distinguish between these basic eligibility prerequisites that are immune from the Equal Protection argument, as compared to non-essential requirements that are not immune from the obligation to treat similarly situated voters equally. Does this distinction come from Minnesota law, federal constitutional jurisprudence, or some combination of the two? As far as I can tell, Coleman’s Equal Protection analysis is underdeveloped on this point—even assuming he is still permitted to argue it before this court.

But in today’s oral argument, Coleman was also using Equal Protection in a very different way, not trying to rely on it directly as an independent source of legal obligation that the three-judge state court must follow. Instead, it was a kind of indirect use. He says, in effect, that Equal Protection considerations must now inform the court’s interpretation of what Minnesota statutes on absentee voting mean. He acknowledges that looking at the language of the statute alone might lead the judges to think that Minnesota law provides one thing. But, he says, the judges no longer can look at the language of the statute alone, given all the evidence of different treatment of essentially identical ballots in different counties. Some counties have been interpreting the same Minnesota statute more leniently than other counties have, and this differential local interpretation must now be a factor in how the court itself interprets the same statute. It becomes a “gloss” or “veneer” on the words of the statute, in the words of Coleman’s attorneys.

It is an interesting argument, even if it does not appear to be attracting much sympathy with the three-judge court. I wonder if the judges are resistant to it because it is often confusing whether Coleman is making the pure, direct Equal Protection argument, or instead this indirect use of Equal Protection as a gloss on Minnesota’s statutory law? I also wonder if the judges are a bit confused (as I am) about the relationship of this indirect use of Equal Protection and Coleman’s repeated invocation of his “substantial compliance” point.

“Substantial compliance” is one of Coleman’s attempts to get the court not to follow Minnesota statutes strictly. He says that Minnesota voting law has an overarching philosophy that its statutory rules don’t need to be followed strictly, when “strict compliance” would be contrary to the interest of voter disenfranchisement. He’s having a rough time with that argument, particularly because Franken’s attorneys can cite Minnesota Supreme Court precedents that appear to reject that position at least with respect to the absentee voting portion of the state’s voting laws.

But whatever the merits of Coleman’s position on that issue, it appears to me that it is in considerable tension with his reliance on Equal Protection. Local officials ignoring strict compliance with election rules would appear to create the Equal Protection problem that Coleman is complaining about: some local officials end up being more voter-friendly than others; their understanding of “substantial” compliance is significantly less “strict” than “substantial” compliance elsewhere. (By contrast, a rule is a rule is a rule—however harsh—might be a pretty good way to guarantee Equal Treatment/Equal Protection.) So an overall “substantial compliance” approach to Minnsota’s election laws wouldn’t seem to be a good thing from an Equal Protection point of view.

Instead, if Coleman jettisoned his reliance on “substantial compliance,” it might be easier to understand his indirect use of Equal Protection as a gloss on Minnesota statutory law. Local deviation from statutory rules is not a good thing—not to be encouraged, as a “substantial compliance” approach would seem to do—but it unfortunately happens. Equal Protection, however, is a paramount value in state law, as well as federal law. Equal Protection, indeed, might prefer that Minnesota’s absentee ballot laws be interpreted strictly (for reasons just stated), but when local officials have already wrongly deviated from statutory law, Equal Protection is necessarily imbedded in any reading of Minnesota’s election law because of its paramount value. It’s kind of like a self-correcting gyroscopic device inside Minnesota’s election law to make it fair, and one doesn’t need to invoke separate federal constitutional law to make the point; you have to do it simply as part of properly enforcing Minnesota law.

If this is what Coleman is getting at with his second, indirect form of reliance on Equal Protection—and I’m not entirely confident that it is—there would still be lots of questions to answer before one could conclude that it led to the counting of any particular category of absentee ballots. There’s still the problem of distinguishing which statutory requirements are absolutely essential: in other words, more paramount as a statutory matter than even the Equal Protection value. But at least understood this way, the argument pitched to the three-judge state court wouldn’t be pitting “strict compliance with state statutory law” against “Supremacy Clause obligation to follow federal constitutional law, which preempts an ability to do what state law requires.” That’s not an attractive tension, especially for this three-judge panel. Instead, the issue would be—entirely within Minnesota’s own system of election law—how it balances the usual obligation for strict compliance against the value of fairness of treating similarly situated voters the same when local officials already have deviated from strict compliance.

In other words, it is Coleman’s remedial point, made as a proposition of state law, rather than federal constitutional law. But it is a remedial point, not a “substantial compliance” point about how the law is supposed to work in the first instance.

I’m exploring this possibility not because I necessarily think it should prevail, but only to try to understand analytically what I think is going on in this interesting and complicated case. But what’s ultimately important is how the court understands the relationship of Equal Protection and Minnesota’s election law. Based on what the court has said about scheduling, we may know more on that as soon as tomorrow or Monday.

The three-judge court presiding over the contest of Minnesota’s U.S. Senate election released two significant rulings yesterday.  There is some tension between the two, which the court will need to resolve. 

This piece was originally written for MinnPost and appears on its website.

The three-judge court presiding over the contest of Minnesota’s U.S. Senate election released two significant rulings yesterday. The first, and more consequential, confines Coleman’s ability to argue for the counting of as-yet-uncounted absentee ballots to an outer limit of about 4800, simultaneously denying him the right to argue for the counting of roughly 7000 additional uncounted absentee ballots. The second both permits and requires Coleman to prove his case on the facts with respect to each of the 4800 ballots he may pursue, calling for Coleman to bring forth the relevant evidence.

The continued unanimity of the “tripartisan” court—which has one Democratic appointee, one Republican, and one Independent—on both these rulings, as it was in rejecting Franken’s motion to dismiss the case without any evidentiary consideration, strengthens the impression that the court is striving to be fair, balanced, and impartial.

Still, there is some murkiness in yesterday’s two rulings, especially when considered in relationship to each other, and one must hope that the court will clarify matters as the case progresses.

The confusion stems from the fact that the court’s first ruling can be read to limit Coleman’s case in two ways, not just one. It is abundantly clear that the court’s order confines Coleman numerically to the 4800 ballots that he already identified in a previous submission to the court. But the court’s order also seems to limit Coleman categorically regarding the kinds of claims he is permitted to make with respect to any of those 4800 ballots.

The order, on page 1, states: “The scope of this trial shall be limited to . . . [a]bsentee ballots where it is claimed that the voter complied with the requirements of Minnesota Statutes § 203B.12, subd. 2,” which sets forth the exclusive list of four conditions voters must satisfy for their absentee ballots to be counted, or “[a]bsentee ballots where it is claimed that the voter’s non-compliance with Minnesota Statutes § 203B.12, subd. 2 was not due to fault on behalf of the voter.”

This language seems to entail that Coleman is not permitted to claim that any of the 4800 ballots should be counted on the ground that, even though it (considered in isolation) was properly rejected under Minnesota law, equivalent ballots have been already counted by other local officials acting more generously than Minnesota law requires, and thus it would now be a denial of Equal Protection as guaranteed by the federal Constitution to count some but not all of these equivalent ballots.

This federal Equal Protection argument is one that Coleman’s attorney, Joe Friedberg, has been emphasizing since the beginning of the trial last week.

If the order rules out consideration of the federal Equal Protection claim, as the above analysis would indicate, it potentially has a major impact on Coleman’s ability to press forward on the 4800 ballots that remain “on the table” as a result of the order. Coleman is unlikely to be able to show that all 4800 absentee ballots involve situations in which the voter acted exactly as required under § 203B.12 or that the voter’s mistake was wrongly induced by official error.

Instead, for some percentage of the 4800 ballots, Coleman wanted to show that they should be counted even though the voter’s mistake was the voter’s own fault, but that this mistake must now be excused because the exact same mistake, despite being another voter’s own fault, has already been excused with respect to ballots already counted in the Senate election.

To win this argument, Coleman needed to rely on federal Equal Protection, and not just on whether Minnesota officials had properly complied with § 203B.12. Conversely, federal Equal Protection is now superfluous with respect to absentee ballots wrongly rejected due to official error. Yesterday’s orders make clear that they will be counted pursuant to state law as long as Coleman has the evidence to show these ballots met the four specified statutory requirements or the government was responsible for them not doing so. To win on this state-law ground, Coleman does not need to compare any ballot with any other; he just needs to show that each, considered by itself, was mistreated by officials. There is no need for a federal Equal Protection claim to prevail on these ballots.

Thus, federal Equal Protection is only important, but nonetheless all-important, with respect to Coleman’s effort to count, not just wrongly rejected ballots, but also appropriately rejected ballots that are identical in relevant respects to ballots already counted.

Looking solely at the first of yesterday’s two orders—the one that specifically limited Coleman’s case to the 4800 absentee ballots he previously identified—one gets the impression that the court ruled the federal Equal Protection issue off-limits because Coleman did not properly raise it in his Notice of Contest and other pre-trial submissions. The court’s opinion accompanying that order is all about “notice pleading”—the requirement that the contestant (here Coleman) fairly apprise the court and contestee (here Franken) of the nature of the claims raised in the case. The opinion permits Coleman to pursue the 4800 ballots, and not just a narrower category of 650, because the Notice of Contest contained this specific language: “a material and significant number of absentee ballot envelopes . . . were improperly rejected by local officials.” The court’s reliance on this language would seem to indicate that the court is not permitting Coleman to make his separate federal Equal Protection argument because, in the Notice of Contest, he only complained about absentee ballots being wrongly rejected under state law. In the Notice of Contest, Coleman did not ask for the counting of appropriately rejected absentee ballots just because equivalent ones had been counted in other localities.

If this reading of the court’s opinion is correct, then the court’s refusal to consider the federal Equal Protection issue is based on a procedural ground—not properly pled in the Notice of Contest—rather than a substantive rejection of its merits, based on the court’s understanding of federal Equal Protection law.

But the court’s second order of yesterday casts doubts about this reading of the first order. In the second order, the court appears to reject the merits of Coleman’s Equal Protection argument: Coleman “repeatedly raised the specter of Bush v. Gore, 531 U.S. 98 (2000) in support of [his] motion for summary judgment”—a motion which, if granted, would have permitted Coleman to win the counting of some ballots without an evidentiary trial. But the court viewed Coleman’s reliance on Bush v. Gore, the key federal Equal Protection precedent, as substantively unsound:

The Court questions the applicability of Bush v. Gore to the issues presented in the Contestants’ Notice of Contest. . . . Unlike the situation presented in Florida in Bush v. Gore, the Minnesota Legislature has enacted a standard clearly and unambiguously enumerating the grounds upon which an absentee ballot be accepted or rejected, as codified in Minn. Stat. § 203B.12, subd. 2. . . . The objective standards imposed on absentee ballots by Minn. Stat. § 203B.12 distinguishes the election systems of Minnesota and Florida.

This language is that of a court rejecting Coleman’s Equal Protection argument on its merits, not viewing it as procedurally barred because it was not properly pled in the Notice of Contest.

What difference does it make, one might think, whether Coleman loses his Equal Protection argument procedurally or substantively? In the end, it may not make a practical difference, and of course Coleman still might not be able to overcome Franken’s 225-vote lead even if he somehow gets his Equal Protection argument back in play. But it is too early to tell, and a procedural-versus-substantive rejection of the Equal Protection argument might—I emphasize “might,” not necessarily “will”—have consequences down the road. For one thing, because of special rules governing both U.S. Supreme Court review of cases coming directly from state court, as this contest would after a stop at the Minnesota Supreme Court (assuming Coleman would wish to pursue it that far), a procedural rejection of the Equal Protection claim would be a barrier to U.S. Supreme Court review in a way that a substantive rejection of the same claim would not be. Conversely, a substantive rather than procedural rejection of the Equal Protection claim would make it harder for Coleman to walk over to federal district court, in an effort to pursue that same claim again in a different trial-level court.

Most significantly for the moment, however, is how best to reconcile the definitive procedural ruling in the court’s first order from yesterday with its tentative substantive ruling in the second order. It is important to understand that the court’s dismissive language about Bush v. Gore in the second order came in the context of rejecting Coleman’s motion for summary judgment. What that means is that the court was not rendering a final judgment on the merits of Coleman’s claims; rather, it was only saying that there needed to be a factual trial and, thus, that Coleman was not entitled to win them outright. In this light, it is possible to read the court’s discussion of Bush v. Gore as preliminary; perhaps after trial it would become persuaded that, with respect to some of the 4800 ballots, it really was necessary to count them despite appearing in isolation to be appropriately rejected, simply because equivalent ballots had already been counted. If this is right, then the court hasn’t ruled out Coleman’s Equal Protection claim completely with respect to the 4800 ballots; instead, it has just put Coleman on notice that he faces great skepticism on the part of the court regarding the legal theory on this aspect of his case. But as any good lawyer will say, as long as you are still in the game, you have a shot of winning, and this reading of yesterday’s order would still leave the Equal Protection argument in the game (at least with respect to the 4800 ballots, not for the other 7000).

Yet it is hard to square this reading with the categorical limitation of the court’s first order yesterday, confining Coleman to arguments about compliance with Minnesota’s statute—with no possibility for argument that some ballots excludable under the statute still must be counted because of federal Equal Protection. But nothing in the first order speaks to the merits of the Equal Protection argument, discussing only what Coleman raised in his Notice of Pleading. This would suggest that the Equal Protection argument, and any evidence relevant to it rather than statutory considerations, have in fact been knocked out of the game entirely.

There does not appear to be a way to resolve the apparent tension between yesterday’s two orders without some further guidance from the court. The tension, indeed, may be a product of one order having been drafted by one of the three judges, with another judge drafting the other—and the court releasing both quickly in the interest of moving the trial forward under its narrower scope, but not having the time to see (or resolve) this apparent tension. Whatever the cause, clarification may come quickly in the form of evidentiary rulings from the court: if Coleman’s attorneys continue to present evidence that is relevant solely to their Equal Protection argument, and Franken’s attorneys object on the ground that the Equal Protection issue no longer is in the case, then it will be important to see how the court rules on this objection. If the objection is sustained, then Equal Protection is out of the case; if not, then Coleman still has a slim, but fighting chance on that issue.

A brief comment to explain why.

In a ruling today, the “tripartisan” 3-judge panel assigned to hear Coleman’s contest of Franken’s 225-vote lead after the recount of the U.S. Senate election in Minnesota (“tripartisan” because it has one Democrat, one Republian, and one Independent judicial appointee) unanimously rejected Franken’s motion to dismiss the contest without a trial.  Based on an initial reading of the court’s opinion, in my judgment the ruling is legally sound, well reasoned, and suggests that the panel will preside fairly over this legal case.

Franken’s principal argument was that the court could not hear the matter because the U.S. Senate has the ultimate authority to decide which candidate prevailed.  The 3-judge panel explained, citing the relevant U.S. Supreme Court precedent, that its consideration of the contest is merely preliminary and does not prejudge the Senate’s ultimate determination.  This ruling seems correct, especially after (as the court also noted) the Minnesota recount was necessarily incomplete in considering some of the issues that have emerged, including those specifically concerning alleged double-counting of some votes and erroneous or inconsistent treatment of rejected absentee ballots.

The court also rejected Franken’s argument that Coleman’s claims are insufficiently specific to proceed to the next stage of litigation, in anticipation of a trial on whether they are correct factually.  The court was correct to express concern, in sympathy with Franken’s position, that unduly vague or generic allegations are inappropriate in an election contest, particulary because of the need to bring closure to the unsettled election as expeditiously as possible.  But the court was also sound in ruling that at least some of Coleman’s allegations — including the two mentioned above (alleged double-counting and rejected absentee ballots) pass this preliminary threshold test.  The court’s balanced treatment of this point, again, bodes well for a fair consideration of the case as it proceeds to the next stage.

The court’s ruling, it must be emphasized, in no way indicates that Coleman will ultimately prevail in this contest.  Even if he gets to a trial on his claims, it is unclear at this point (at least to me) whether he has the evidence to prove his factual allegations, as well as whether or not Franken has counter-evidence of his own concerning other ballots that could affect the eventual result.

But today’s ruling shows that the contest is proceeding in an orderly, legally appropriate way–which maximizes the court’ s own explicitly stated goal of “conducting the proceedings in such a way that the public will have faith in our electoral process and confidence in our judicial system.”

Now is the critical moment to assure that the outcome ends up accepted by both sides as fair, by picking the three members of the contest court so that collectively these judges are perceived as evenly balanced and thus an impartial tribunal.

Nine weeks ago, Minnesotans awoke to learn that just a few hundred votes, out of about 3 million cast, separated the two leading candidates for their U.S. Senate seat.  The politically savvy citizens of the state—and there are many of them—knew then that there likely would be a judicial contest of election result.  To be sure, there was also the possibility of an administrative recount as a prelude to the judicial contest, but it was unlikely that a recount would preclude the necessity of a contest. 

The recount is now complete, and indeed the contest has been filed.  It may be hard to think of the recount, as thorough and lengthy as it was, as a prelude to the main event, but that’s the reality of the situation.  The contest court has the authority to revisit everything that the recount board did, while the recount board made clear that it lacked the power to resolve two of the main issues that have emerged these past nine weeks: (1) the problem of wrongly rejected absentee ballots; and (2) allegations of erroneous double-counting during the recount of ballots that were duplicated because the machines could not read them. There were strategic efforts by each campaign at various points to get one or both of these issues resolved during the recount process, but those efforts were unsuccessful—even with respect to the rejected absentee ballots, for which an incomplete process was developed to get some of them included within the recount totals. 

I have no view of the merits of the contest at this point.  It would be premature to have one without consideration of the evidence underlying the claims that are raised, and I for one don’t feel I have a good sense of what evidence will be presented to the contest court concerning either of the two issues identified above, or others that may be pressed.  (Of course, even if there is strong evidence to alter the margin of victory as it now stands, at 225 votes, there must be evidence to erase all of that margin for the contest to be ultimately successful.  Adding 650 previously uncounted absentee ballots won’t necessarily do that, unless they break overwhelmingly in favor of the contestant.  But the point here is that a lot of issues have been included in the Notice of Contest filed yesterday, and if enough of them are meritorious—and there are not enough meritorious counter-adjustments from the other side, as there may well be—then the ultimate outcome conceivably could be opposite from what the recount determined.)

But I do have a strong view about the process by which the contest is conducted.  It’s a view I expressed on November 18 in an op-ed published in the Minneapolis Star-Tribune, reprinted with permission as a Free & Fair column.  It’s also a view that I expressed today as part of a “Topic A” opinion forum in the Washington Post. 

The view is that process should be fair to both sides, and perceived by both sides and their supporters as fair.  That the best way to achieve this goal is to have the three-judge court that will adjudicate the contest be structurally evenhanded between the two sides, which requires one judge whose political background is perceived to be aligned with the party of each campaign and the third judge to be perceived as neutral, in neither camp.  There are different methods of appointing the three judges to get that kind of structural evenhandedness, but the best method is the one that Minnesota already used for the contest of its 1962 gubernatorial election: have the candidates themselves, by agreement, select the three judges.  If the two candidates can’t or won’t do that, the second-best method is to have the two judges whose backgrounds are perceived as aligned with each side pick the third judge to join them on the panel.  (This second-best method is the one we used for the McCain v. Obama simulation, and it worked splendidly.) 

Now is the critical moment in the process for building in this kind of structural fairness.  This morning’s Minneapolis Star Tribune reports that the appointment of the three-judge panel will be made, not by Chief Justice Magnuson (who has recused himself because of his service on the canvassing board), but by senior Associate Justice Alan Page.  Let’s hope no one is in a position to say that the outcome of the contest was affected because one Justice rather than another exercised this appointing authority.  

As I reflect on what I wrote in the November 18 op-ed for the Star Tribune, as the recount was just beginning, I must add that I’ve been impressed with the fair-mindedness of the State Canvassing Board even though its structure was not guaranteed to be inherently evenhanded.  It did have representation from different political backgrounds: Secretary of State Ritchie was an elected Democrat (“DFLer,” to be precise, as Minnesota calls its Democrats), and its two supreme court Justices were Republican appointees; all of its members conducted themselves in a way that showed that their effort was to count votes accurately, not favor a particular candidate.  The board’s conduct demonstrates that—at least in a state with the kind of “good government” culture that Minnesota has—a fair process can be achieved even without a guarantee of structural neutrality. 

But there is no reason for the state to make it harder on itself to maintain the necessary appearance of procedural impartiality, now that the contest has commenced.  The contest necessarily will be more intense even than the recount was: the trial will be focused on what matters most, as ancillary issues involving uncontroversial ballots will be pushed to the side; the factual inquiry will be conducted under the crucible of cross-examination, with sworn testimony. 

If there are two Democrats on the three-judge panel, or two Republicans, it might still be possible for its eventual decision to be accepted by both sides as fair—especially if the panel is unanimous and rules against the candidate with the same party affiliation as the majority of its members.  But even good-government Minnesota should avoid the risk that it won’t turn out this way if the contest court is structurally uneven.  It will look ugly to Minnesotans, as well as the rest of the nation, if a court with a 2-1 party membership votes 2-1 in favor of the candidate whose party aligns with its own majority. 

Thus, Justice Page should do whatever he can to get a court with one Democrat, one Republican, and the third judge whom the public perceives as genuinely neutral.