At some point -- and maybe right quick with the Franken reply brief due sometime today -- the applicability of the Supreme Court's (in?)famous ruling in Bush v. Gore to the case of Minnesota's disputed Senate election has to come to the fore.

There are several ways to athink about this, some of which I'll explore below. But first, to link back to part the fourth of this seemingly endless series: I wrote that the absence of any disparate impact on the "suspect classifications" (blacks, women, etc.) was a problem for Coleman in seeking to invoke the Equal Protection Clause.

It is a problem, and Coleman's case would be stronger if he could show that someone was trying to disenfranchise a particular ethnic group, or even that some such group was affected more than others. But that weakness in Coleman's argument is not a killer. As I indicated at the bottom of that piece, the U.S. Supremes have also given major equal protection scrutiny to state actions that place a burden on any of the "fundamental" rights or interests of Americans, including the right to vote.

The Supremes did just that in Baker v. Carr and Reynolds v. Sims (these are the "one man, one vote" cases, ruling that states must have roughly equal populations in legislative districts in order to avoid granting more weight to one voter's vote than another). And they did it in Harper v. Virginia when they struck down poll taxes, ruling that the inability of a voter to pay a fee should not interfere with his or her fundamental right to vote. None of those landmark rulings relied on a finding that malapportionment or poll taxes were designed to reduce the voting power of blacks. But if you look at those practices in their full historic context, the legacy of racism was in the background.

There is surely a possibility that the MN or U.S. Supremes will draw a line from those previous Equal Protection voting rights cases to the facts of the Coleman-Franken dispute. I was a little surprised that the Coleman brief didn't make more of them (although it cited Reynolds several times, Harper once). Perhaps the Franken brief will discuss them more extensively. Obviously, it is in Coleman's interest to portray a strong line running through those cases directly to the issue of non-uniformity of policies and procedures between counties in the Senate election. And Team Franken will surely emphasize differences between the facts and principles that led the Supremes to find equal protection problems with poll taxes and unequal legislative districts versus the facts and arguments in Coleman's suit, which Franken prefers to portray as ordinary variations, almost unavoidable when a statewide election is conducted in thousands of precincts scattered from the Iron Range to the Red River Valley.

But, for all its weirdness and controversy, the most recent precedent, and the one closest in topic to Coleman/Franken, is Bush v. Gore (which I'll hereafter call BvG). 

The most famous or notorious fact of that December 2000 ruling was that a bare 5-4 majority, comprising the court's "conservative wing" and consisting entirely of justices appointed by Republican presidents, deviated in many respects from their established jurisprudential tendencies regarding judicial "activism," states' rights, and equal protectionism, and stopped a recount of the Florida 2000 presidential vote.

The ruling effectively handed the presidency to George W. Bush. No one thinks it was a pretty ruling, but defenders say the court majority acted to avert an even bigger constitutional crisis than the one it created. Our purpose at this moment is not to reconsider the merits of that unpretty ruling but to try to understand how BvG might apply to Coleman v. Franken.

For those purposes, the two key aspects may be these:

• The court announced that disparities in the treatment of disputed ballots across different jurisdictions within a state may (and in the Florida case, did) violate the Equal Protection Clause (this would be the favorite part of the story for Team Coleman); and,
• The court seemed to announce that its ruling was so narrowly tailored to the specific facts of that chaotic case, that it should not be considered a precedent for future action in other election cases (the favorite part for Team Franken). But the justices didn't exactly say that.

Here's a quick recap of how BvG came down:

Having lost Florida by a very narrow margin in the official tally, Al Gore sued asking the Florida courts to order a few Dem-friendly counties to conduct a hand recount focused on the so-called "undervotes." Undervotes are ballots on which the counting machines could read no vote for president. Gore believed that if examined by hand, many of them would have dimpled or hanging chads (remember those) that reflected the voter's intent. And Gore hoped that if enough of these were counted, he might pull into the lead.

The Florida Supreme Court said yes to the recount but one-upped the Gore request and ordered every county in the state to do a hand recount guided by the principle that if the recounters could discern the voter's clear intent, they should count the ballot. The recount was under way when Bush sued to stop it.

The U.S. Supremes ruled that "clear intent" was not a sufficient standard to assure that like ballots would be treated alike. As I mentioned, the Supremes had previously identified the right to vote as a fundamental right and had applied equal protection scrutiny to it. But this was pretty much the first time the court imposed equal protection logic on the nuts and bolts of how an election could be conducted and how the votes must be counted to square with the right of all voters to "equal protection."

According to the majority opinion: "The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."

I know a lot of readers have heard that Coleman has no argument and is pursuing his case only to delay the inevitable seating of Franken. I keep saying Coleman's argument is not terrible. (I'm not saying it's a winning argument.  And the same argument has already been rejected by theThreeJudge Election Contest Court. I have no idea how the MN Supremes will treat it.)

I suggest that skeptics open their minds and think about the facts and arguments that make up Coleman's case as you read this excerpt from the majority ruling in BvG:

"The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right [of voters to be equally protected]. Florida’s basic command for the count of legally cast votes is to consider the “intent of the voter” ... This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary...

"The want of those rules here has led to unequal evaluation of ballots in various respects. See Gore v. Harris, ___ So. 2d, at ___ (slip op., at 51) (Wells, J., dissenting) (“Should a county canvassing board count or not count a ‘dimpled chad’ where the voter is able to successfully dislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree”). As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.

 "The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote... Testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment.

There are surely echoes here of Coleman's argument that ballots with similar characteristics were accepted in one county and rejected in another. But I've also highlighted a couple of phrases that Team Franken could exploit to draw distinctions between the two recounts. Many of them are arguments that the ThreeJudges heard and adopted in a long appendix (starting on page 33 of their big order. For example:

• Perhaps the key to a BvG Equal Protection problem is not the variation of how ballots were treated, but the lack of standards. Standardless manual recounts violates the Equal Protection and Due Process Clauses."

BvG found that Florida suffered from an "absence of specific standards." In another passage, the court said the question presented by the Florida case is "whether the use of Minnesota law does provide standards for consideration of absentee ballots. Many commentators have suggested that these standards are crystal clear (although I was very impressed with a piece I read over the weekend by elections law scholar Ned Foley of Ohio State, which convinced me that the Minnesota statutes are not all that clear on how to check absentee ballots before counting them).

But Minnesota's recount could not reasonably be called "standardless." In rejecting Coleman's equal protection argument, with a direct reference to BvG, the ThreeJudges concluded that "the Minnesota Legislature had "enacted clear uniform standards regulating absentee voting in this state."

• If it were the case that any variation in the treatment of similar ballots violated the 14th Amendment, then every election would be unconstitutional. In BvG, the Supremes wrote that the Florida recount mechanisms "do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right." In another passage, the majority opinion insisted "there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."

Such language (not guaranteed equal treatment of all votes but "some assurance" of the "rudimentary requirements" of it) suggests that the court sees the existence of a spectrum from perfect consistency to total arbitrariness. It implies there is a line somewhere on the spectrum that separates an acceptable recount from an equal protection violation. The Florida recount was too far toward the arbitrary end of the spectrum, the BvG court found, but didn't do much to identify the point on the spectrum that separates the acceptable from the un.

Minnesota's system -- which leaves us with a dispute over 4,000 votes out of 3 million cast (about one-tenth of 1 percent) -- did not deliver perfect consistency but could be found to be within the acceptable range for 14th Amendment purposes, Team Franken could argue.  Team Coleman would presumably reply that if 4,000 votes that should have been counted were rejected in an election that was decided by 312 votes, the level of arbitrariness may have changed the result of the election.

But if the key to triggering an equal protection problem is that the margin is small, then all close elections will be found to violate the 14th Amendment.

• Another passage in BvG causes two problems for Coleman. Wrote the Court: "The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.

Problem one: The court majority is specifically OK-ing a situation in which different localities have adopted different systems. Is this what we had in Minnesota last November where some counties adopted a system for checking to see whether the witnesses who signed absentee ballots were registered and other counties chose to assume that if the witness had a Minnesota address, that was good enough?

Problem two: In BvG, the Supremes frequently focused on the fact that the "standardless" recount had been ordered by a court and imposed on the whole state. I'm not a lawyer, and I can't really sympathize with the notion that it is worse for a court to violate the equal protection clause than it would be for a state law to do so. (The equal protection is specifically directed at actions by a "state.") But the BvG Court seemed to signal this at several points:

"The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer."

In Minnesota 2008-09, the hand recount was triggered automatically by a state law (because the margin was small). It was not ordered by a state court with the power to assure uniformity. TheThreeJudges did not order a statewide recount but did decide what standard they would apply to the question of counting additional ballots.

They decided that all the statutory requirements of an acceptable absentee ballot had to be met. In their ruling, they said state law did not authorize them to set a lower standard. It is arguable whether they had the option of taking into account the varying levels of compliance that were used by the counties on Election Day.

The MN Supremes could decide that TheThree erred by setting such a strict standard. They could decide that question as a matter of state law, without needing a 14th Amendment or a BvG analysis. And that may be one of the best hopes Coleman has for getting more ballots counted. But there is no chance that, relying on BvG, the state Supremes will rule that there was anyting "arbitrary" or "standardless" about the ruling of TheThreeJudges.

The "no precedent" conundrum

It's often said that the BvG majority specifically announced that its ruling should not be used as a precedent to guide future rulings. If that were true, we are all wasting a lot of time talking about whether it applies in Coleman/Franken. Election law scholar Rick Hasen of Loyola Law School in Los Angeles argued in a 2001 law review article that the court sent many signals that it didn't want future courts to take BvG seriously. (Hasen's article has an entire section titled: " Why we should not take Bush v. Gore's equal protection holding seriously." And it has been noted that the court hasn't relied on BvG as a precedent in any ruling since 2000. But the court didn't exactly say "no precedent," nor "don't take this seriously." What it said was this:

"Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

The least charitable reading of that is that the five conservatives were determined to make Bush president, but understood that in doing so they might create a monster that would call huge numbers of elections into question.

A more sympathetic reading is that the court felt it had to act to avert a constitutional crisis. There can be only one president at a time and the country would be in chaos if two candidates with reasonably strong claims to having won the election were still arguing about it when Inauguration Day rolled around.

Perhaps the most sympathetic reading would be to take the statement at face value. The majority believed that some level of non-uniformity or randomness or standardlessness really did violate the Equal Protection Clause, but they did not want every loser of a close recount to think they had a good constitutional lawsuit. Defenders of the ruling often point out, and liberal critics should note, that two of the court's liberals -- Justices Souter and Breyer -- agreed with the conservative five that the lack of uniformity in the Florida recount created an equal protection problem.

This is true. But Breyer and Souter believed that the cure for the problem was to improve the Florida recount so it would meet the requirements of equal protection. The majority five ruled that there was no time for that, which seems to seriously undermine the urgency they felt for guaranteeing that the election be decided on a basis consistent with treating all voters equally.

Anyway, if we are to take the precedent seriously, Minnesotans and the MN Supremes (who, after all, did not create the issue and have no special way of knowing what the U.S. Supremes meant) must try to guess precisely what it was about the "circumstances" of Florida 2000 that crossed the line and how similar are the circumstances of Franken/Coleman.

If so, any of the specific factual (or circumstantial) differences mentioned above -- or probably many more differences that Team Franken could cite -- might be sufficient to conclude that the quasi-precedent does not apply. Perhaps, if the case is appealed to the U.S. Supreme Court and if the court takes the case, the Supremes, with a couple of new members since 2000, could clarify what they meant in BvG. But your humble ink-stained wretch would bet against that happening.