My analysis of the Supreme Court's Franken-Coleman ruling
I finally read the Supreme Court ruling all the way through. Here's what I got out of it.
Like the Election Contest Court ruling before it, this is an almost total rejection of every argument Team Coleman had made. Calmly and with no discernible attitude, the Supremes said:
- Nothing that Coleman raised constituted a violation of either the due process or the equal protection clause of the U.S. Constitution;
- Coleman was wrong that Minnesota is a "substantial compliance" state where the acceptance of absentee ballots is concerned, it's a "strict compliance" state so there's no reason to count absentee that were rejected for failure to strictly comply;
- The Three-Judge-Panel was correct in what Coleman spokester-lawyer Ben Ginsberg always called the "Friday the Thirteenth" ruling, namely that Coleman was entitled to have the contest court count only those absentee ballots for which Coleman could prove that every requirement of the absentee ballot law was fulfilled (and Team Coleman put in evidence of very few such ballots);
- the ThreeJudges also got it right on the dispute over allegedly "double-counted" ballots;
- and TheThree, plus the Minnesota State Canvassing Board, both got it right in deciding to go back to the election night tapes to take account of the famed "missing ballots" from one Minneapolis precinct.
Coleman's best argument over recent months has been that different counties applied different standards in accepting or rejecting absentee ballots. Yesterday's ruling didn't say so, but as far as I'm concerned, Team Coleman proved that there was a lack of uniformity across county lines. In a footnote, the Supremes even suggested that, to the degree that this case has highlighted problems in the Minnesota election system, the executive and legislative branches of Minnesota's government should get together and figure out ways to do better on this score.
But as far as throwing out the election result, or changing the count after the vote, or counting thousands more ballots that failed to meet the statutory standards, the Supremes said Coleman was nowhere near meeting his burden of proving that these disparities constituted either due process or equal protection violations.
The ThreeJudges had concluded that these kinds of variations were the kind you would expect to find in any election processing 3 million votes across 87 counties. In a footnote (#15 if you want to read it), the Supremes seemed to agree, writing:
"It is impossible to eliminate all variation in a process administered at thousands of locations around the state by thousands of people, many of them temporary volunteers."
The court seemed to be saying that if these kinds of problems added up to due process or equal protection problems, then no elections could pass constitutional muster.
To find these kind of variations had caused due process or equal protection problems, the court ruled, you would at least have to have evidence that some voters had been misled by public officials to believe that their absentee ballots could be counted without fulfilling all of the requirements.
If a voter had relied on such an assurance, then found that his vote was disqualified because of it, that voter might be said to be disfranchised. But in a "strict compliance" state, a voter who failed to strictly comply with the law could not be said to have been unfairly deprived of his or her franchise. But, the court noted, Coleman produced no evidence of any voters in that category.
They also noted, and seemed to rely fairly heavily on, the fact that Coleman did not prove, and did not even allege, that these disparities were the creation of election officials trying to commit fraud, nor to intentionally use their discretion to help one party or the other.
In fact, in the section in which they explained why the Minnesota case did not resemble the facts of the Bush v. Gore Florida 2000 disaster, the justices noted that -- unlike Florida where partisan judges were looking at marked ballots and deciding whether or not to count them, and therefore could conceivably had engaged in partisan bias -- the absentee ballot boards that accept and reject absentee ballots can't even see the ballots (they're still in their sealed envelopes), which makes partisan cheating almost impossible.
In short, the Supreme Court ruled that Coleman had not proven any elements that he would need to prove to nullify the result of the election or even to overrule the finding of the lower court.
The court, by the way, issued this as a "per curiam" opinion, which means that no justice is identified as the author and the court is speaking in its capacity as an institution, which may have made it even slightly firmer than a signed ruling that was supported by a unanimous court.
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Comments (12)
Doesn't this also say something about the Coleman legal team?
Strategy, preparation, thoroughness all seem to have been lacking. I don't recall that they won a single legal battle, and were even fined by the court at one point.
I'd be curious to know if their reputations are sullied by such a complete defeat.
In the second to last paragraph you state that 'the Supreme Court ruled that Franken had not proven any elements'. I believe you meant 'Coleman'.
The MnSC stopped at stating that the disparate treatment of absentee ballots due to minor process variations did not constitute a valid Equal Rights violation.
But even had they gone one level futher down, there was no evidence the disparate treatment of absentee ballots changed the outcome of the election.
No proof that revealed that either Coleman or those who voted for him were harmed by this disparate treatment.
Thanks, Anthony. It's been fixed.
Must say that I'm pleasantly surprised by Coleman's concessional grace and sense.
As the bard (almost) said:
Nothing so became his challenge as the leaving of it.
I just wanted to thank Mr. Black for all of his thoughtful and thorough coverage of the Coleman-Franken race and recount. It's been a major breath of fresh air to actually read about the legal procedures accompanying the claims by both parties. The MinnPost was the single most consistent source of useful information throughout this long process.
Thank you!
//My analysis of the Supreme Court's Franken-Coleman ruling
Hey Eric - who writes these headlines? I think I learned in my first year of J School that a headline should summarize what the article says, i.e. NOT that this is an analysis, but WHAT the analysis is.
Eric,
I like your healine. Journalism schools are the scourge of western civilization.
Just adding my agreement with Ben Tante in his appreciation for the thoughtful comments -- and particularly the access provided to original documents -- regarding this long process.
Eric is what journalism should be, and is less and less in print.
Bravo!
Perusing the comments here, one could say Eric has quite a loyal band of followers/commenting posters.
With a 'constituency' like that, when are you going to throw your hat in the ring for Guv with all the others?
Even thought of a old slogan, campaign theme, like..."What's BLACK and white and read all over"...
I thought the MnSC ruling was exceptionally strong and well reasoned.
And I am especially pleased that the ruling sets a precedent of establishing that an Equal Rights Violation regarding counting of absentee ballots has not occurred if:
(1) There is not purposeful intent of election officials to count ballots in a manner that favors one candidate over another, or discriminates between classes of people.
And:
(2) There are statutory requirements on how votes are to be counted during state elections that are applicable statewide.
This precedent may make it possible to prevent the Bush vs. Gore ruling from being a basis to appeal every close election result by claiming an Equal Rights violation. For as the ruling states, there will always be some degree of process variation among the hundreds of voting centers and the thousands of volunteers who count the votes.
The Bush vs. Gore ruling was a one-time departure from the historical application of the 14th amendment. And the MnSC has restored the historical application, with the only stipulation being that state statutory requirements must be in place for statewide elections. A small price to pay for a rushed US Supreme Court ruling that probably resulted mostly from a motivation to avoid a constitutional crisis during the 2000 election.
The MnSC ruling not only made history in Minnesota. It will make national history, as a precedent that will be used throughout the nation. It will return finality to the sates to resolve most close election challenges, and close the wide-open gate to the federal courts that was created by the Bush vs. Gore ruling. For that reason, I suspect federal courts will also be appreciative of the MnSC ruling.
The MnSC ruling purposely attempts to contrast differences between the circumstances of Coleman vs. Franken and Bush vs. Gore. It was necessary in order to establish that the court finding of an Equal Rights Violation in Bush vs. Gore is not applicable to Coleman vs. Franken. And the listing of the many varied differences in circumstances provided protective insulation to the possibility of a reversal during subsequent appeal.
But now that we know the ruling will not be appealed, I do wish that statements were excluded in the ruling that suggest envelope-enclosed ballots vs. open-face ballots was another reason why Bush vs. Gore was not applicable.
For it could limit the value of the ruling as a national precedent to only when the counting of absentee ballots is the sole issue during litigation. Had the statements been excluded, the precedent would clearly apply to all votes that are counted during an election – not just absentee ballot votes.