Edward Foley: The three-judge recount panel is off to a good start

Not just political junkies, but also election law experts around the country are paying close attention to Minnesota Recountland. Edward B. Foley of the Ohio State Law School (contributor of a recent MinnPost guest piece) gave the three-judge panel a thumbs up on his own blog. Foley captured well, from a legal standpoint, the logic of the panel’s quick rejection of Team Franken’s motion to throw out the Coleman case:

In a ruling today, the “tripartisan” 3-judge panel assigned to hear Coleman’s contest of Franken’s 225-vote lead after the recount of the U.S. Senate election in Minnesota (“tripartisan” because it has one Democrat, one Republican, and one Independent judicial appointee) unanimously rejected Franken’s motion to dismiss the contest without a trial.  Based on an initial reading of the court’s opinion, in my judgment the ruling is legally sound, well reasoned, and suggests that the panel will preside fairly over this legal case. 

Franken’s principal argument was that the court could not hear the matter because the U.S. Senate has the ultimate authority to decide which candidate prevailed.  The 3-judge panel explained, citing the relevant U.S. Supreme Court precedent, that its consideration of the contest is merely preliminary and does not prejudge the Senate’s ultimate determination.  This ruling seems correct, especially after (as the court also noted) the Minnesota recount was necessarily incomplete in considering some of the issues that have emerged, including those specifically concerning alleged double-counting of some votes and erroneous or inconsistent treatment of rejected absentee ballots. 

The court also rejected Franken’s argument that Coleman’s claims are insufficiently specific to proceed to the next stage of litigation, in anticipation of a trial on whether they are correct factually.  The court was correct to express concern, in sympathy with Franken’s position, that unduly vague or generic allegations are inappropriate in an election contest, particulary because of the need to bring closure to the unsettled election as expeditiously as possible.  But the court was also sound in ruling that at least some of Coleman’s allegations — including the two mentioned above (alleged double-counting and rejected absentee ballots) pass this preliminary threshold test.  The court’s balanced treatment of this point, again, bodes well for a fair consideration of the case as it proceeds to the next stage.

The court’s ruling, it must be emphasized, in no way indicates that Coleman will ultimately prevail in this contest.  Even if he gets to a trial on his claims, it is unclear at this point (at least to me) whether he has the evidence to prove his factual allegations, as well as whether or not Franken has counter-evidence of his own concerning other ballots that could affect the eventual result. 

But today’s ruling shows that the contest is proceeding in an orderly, legally appropriate way — which maximizes the court’ s own explicitly stated goal of “conducting the proceedings in such a way that the public will have faith in our electoral process and confidence in our judicial system.”

What think?

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