On Tuesday, the three-judge court handling the contested Minnesota Senate election asked Norm Coleman and Al Franken whether, in their view, absentee ballots within 19 specified categories should be counted. On Wednesday, the two candidates submitted their responses, and they could agree on only four of the 19.
If you are keeping score, these are: No. 3 (no notary seal); No. 10 (no signature on registration form included with ballot); No. 15 (ballot delivered late by agent); and No. 18 (no registration, not caused by official error). In these four circumstances, both sides agreed that the absentee ballot should not count.
Otherwise, Coleman generally argued for counting the ballot, with Franken arguing for rejecting it. (No surprise, given Coleman trailing Franken by 225 votes.) Interestingly, they switched positions with respect to one category: No. 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.”
A difficult balance
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. It 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 No. 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?
A tricky job for the judges
I belabor this point, because the court will need to decide how 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 heretofore track record of perfect unanimity. It will start to look arbitrary if 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 19 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 19 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 No. 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 No. 8). This is exactly the same argument that Democrats made with respect to approximately 1,000 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; 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.”
Alignment of positions shook confidence in Ohio
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 court 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 is 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.
Familiar, basic arguments are both plausible
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 venerable jurisprudential debate about the enforcement of election laws. Rather, whichever position it takes, what matters is that its ruling appears 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 can be convincing that its ruling on these 19 categories is indeed principled and nonpartisan is if it manages to maintain its as-yet-unblemished unanimity.
Edward B. Foley is a professor at the Ohio State University’s Moritz College of Law, where he also directs its election law program.