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ERIC BLACK INK

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    My analysis of the Supreme Court's Franken-Coleman ruling

    By Eric Black | Published Tue, Jun 30 2009 4:34 pm

    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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    Eric Black
    Eric Black Ink

    minnpost.com/ericblack



    Eric Black is a former reporter for the Star Tribune and Twin Cities blogger. He writes about politics and government of Minnesota and the United States, the historical background of topics and other issues. Click here to view Eric's previous postings at former blog, Eric Black Ink. He can be reached at eblack [at] minnpost [dot] com.

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