The three-judge court presiding over the contest of Minnesota’s U.S. Senate election released two significant rulings Tuesday.
The first, and more consequential ruling, confines Coleman’s ability to argue for the counting of as-yet-uncounted absentee ballots to an outer limit of about 4,800, simultaneously denying him the right to argue for the counting of roughly 7,000 additional uncounted absentee ballots.
The second ruling both permits and requires Coleman to prove his case on the facts with respect to each of the 4,800 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 Tuesday’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.
First ruling seems to limit both number and kind of claims
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 4,800 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 4,800 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 4,800 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.
A potentially major impact
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 4,800 ballots that remain “on the table” as a result of the order. Coleman is unlikely to be able to show that all 4,800 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 4,800 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 ballots that were rejected because of an official error will be counted. 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.
First order cites procedural issue
Looking solely at the first of Tuesday’s two orders — the one that specifically limited Coleman’s case to the 4,800 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 (Coleman) fairly apprise the court and contestee (Franken) of the nature of the claims raised in the case. The opinion permits Coleman to pursue the 4,800 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 Tuesday 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 their 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.
Language has to do with merit
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 Tuesday with its tentative substantive ruling in the second order.
Court didn’t render final judgment
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 4,800 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 4,800 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 at winning, and this reading of Tuesday’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 Tuesday’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.
Edward B. Foley is a professor at the Ohio State University’s Moritz College of Law, where he also directs its election law program.