Coleman/Franken case: Thinking out loud about ‘equal protection,’ part one

As long as the Coleman-Franken case survives in the court system, it will apparently be about Team Coleman’s argument that the current vote tally — which shows Al Franken ahead by 312 votes — is tainted by violations of the “equal protection” clause of the U.S. Constitution. If you don’t know enough about what the clause is, how it got into the Constitution, how it has been interpreted, and how it might look in the context of the Coleman-Franken case, your humble ink-stained wretch proposes a guided tour.

Regular MinnPost readers are well aware of how Norm Coleman’s argument goes:

In deciding which absentee ballots to count, different Minnesota counties applied state standards with different levels of fussiness. As a result, a ballot with a particular shortcoming — for example, the person who witnessed the absentee voter’s signature was not himself a registered Minnesota voter — might have been rejected on that basis in the strictest counties, while a similar ballot might have been accepted in a less strict county where the election officials didn’t bother to check the registration status of the witnesses. There are similar issues involving the issue of signature mismatches, where some counties were apparently a lot more likely to reject a ballot if they thought the voter’s signature on the absentee ballot application looked different from the one on the absentee ballot envelope.

This is certainly not ideal. It would be best if the standards for acceptance of absentee ballots were applied uniformly in all jurisdictions. For all the jabber about who is showing adequate respect for the hard-working, well-intentioned Minnesota election officials and who is dissing them, these variations occurred (although the magnitude of them has not really been quantified).

The Coleman argument is that these deviations from uniformity constitute an equal protection violation of sufficient magnitude that one of three unprecedented and serious adjustment must be made — up to the possibility of throwing out the whole election. That’s a lot to ask. TheThreeJudges of the election contest panel didn’t buy the argument. (Their rejection of it bordered on mockery. They wrote that if Coleman’s argument was taken to its logical conclusion, it would require that if one county inadvertently allowed some felons to vote, all felons’ votes  must be counted.) Most neutral experts predict that it will fail with other courts as well, although I have written that Coleman’s is not a terrible argument and that we have, thus far, no solid indication of how courts other than TheThreeJudges will feel about it.

OK, my apologies. So far I probably haven’t told you anything you didn’t already know.

There are more levels of the Coleman argument than this, for example, having to do with the applicability of the U.S. Supreme Court’s ruling in Bush v. Gore, the higher standard of uniformity that may be required during a statewide recount as opposed to the county-by-county process that occurs on Election Day, and others, all of which we should eventually think about if we are to give Coleman’s argument fair consideration.

And there are many problems with the argument as well, several of which I summarized the day before the Election Contest Court ruled against Coleman (see the bulleted list in the section under Step Three of that post), and almost all of which TheThreeJudges themselves cited in their ruling. 

So, while we await the next technical development (TeamColeman filed its notice of appeal to the Supreme Court Monday, Team Franken will today file a motion asking the Supremes to set a very fast schedule for briefing and oral arguments) and until we can see the next big development (Team Coleman will file a brief extensively relying on its equal protection claim, perhaps next week), I propose to reacquaint myself with the history and nature of the Equal Protection Clause (I knew this stuff cold in 1987 when I wrote a 30-part Strib series on the Constitution). For those of you willing to ride along, I propose to share what I learn with you and seek your thoughts on how well Team Coleman’s argument fits the doctrine. But I’ll warn you, we have little time before the next major development and I’m dangerously fascinated by Constitutional history.

As a guard against my well-established tendency to write too long, I’ll post it in chunks. Today, Chunk One, some ancient history, starting with the slightly inconvenient fact that…

…the framers get no credit for the Equal Protection Clause.

The original Constitution did not contain the Equal Protection Clause, not even after it was amended with the first 10 amendments (the Bill of Rights). This is inconvenient to the spirit of our national civic religion, which prefers to believe in the perfect wisdom and justice of the framers. But, notwithstanding Jefferson’s grand all-men-createed-equal moment in the Declaration of Independence, the framers of the Constitution were not into equality, not even a little, which is among the reasons that the institution of human slavery was able to thrive for almost a century with full protection under the Constitution. The original Constitution offered nothing remotely like equal rights for differing racial groups, genders, age groups, gays and straights etc., and blatant discrimination along all of those lines occurred regularly, and constitutionally, for most of U.S. history.

The only form of “equality” that I can find protected in the language of the original Constitution is the equal representation of each state in the U.S. Senate (which is, if you think about it, a violation of “equal protection” of individual citizens, since residents of small-population states gets unequally much representation in the Senate and residents of large-population states get unequally little representation). And here’s a detail I’ll bet very few, even you smart, well-informed MinnPost readers, know. (I warned you.) Article Five, which establishes the mechanism for amending the Constitution, places only one principle beyond the reach of even the amendment process. The one thing that cannot be changed, even by constitutional amendment, is that: “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Pretty weird from where we stand now, but it was deemed necessary to get all states to accept the new charter.

Equal Protection enters the Constitution…

…under strange circumstances via the 14th Amendment in 1868. This was the immediate post-Civil War era. Most of the southern states were still under military occupation and had not been fully restored as members of the union. So the 14th Amendment was passed in 1866 by a Congress in which southern, former slave states were underrepresented. When it was first presented for ratification in the South, 10 of the 11 ex-Confederate states voted it down by huge margins.

The “Radical Republican” Congress then passed (over the veto of southern-sympathizing President Andrew Johnson) a law with the adorable title “An Act for the More Efficient Government of the Rebel States.” The Efficiency Act laid out the terms for restoring ex-Confederate states to full rights. Among the requirements, the southern states had to ratify the 14th Amendment and would remain under martial law until they did so. Once it was explained to them that way, they did so. From the standpoint of the normal operation of the amendment process, the 14th Amendment was forced upon the South. (Not that I’m feeling sorry about it, just that that’s the way it came down.)

(By the way, I don’t want to be accused of plagiarizing from myself. I’ve lifted the section above, and other stuff in this post, from my own ancient book on Constitutional history based on that 30-part series.)

The 14th Amendment did several things, all related to the new post-Civil War situation. It made clear that African-Americans were citizens (undoing the holding of the hideous Dred Scott decision that said blacks, even free blacks in the North, had no rights  that any white person needed to respect).

Another purpose of the amendment, which is truly bizarre until you think about it, is that the northern Republicans writing the amendment wanted to make sure the southern slaveocracy wouldn’t actually gain power in Washington by the abolition of slavery. How could that be? Well, remember the hideous compromise in the original Constitution that, for the purpose of figuring out how many seats each state got in Congress (which also determines how many electoral votes each state gets), counted each slave as three-fifths of a person?

The abolition of slavery would automatically have upgraded the population of southern states for apportionment purposes. So Section 2 of Amendment 14 said states that denied the right to vote to any adult males would lose apportionment according to the size of the disenfranchised group. Southern states would have to allow blacks to vote, or lose seats in the House. (Most northern states also denied the vote to blacks, but there weren’t many blacks in the North.)

And, as big as the 13th Amendment (abolition of slavery) and the 15th (attempted enfranchisement blacks) were, the 14th Amendment turned out to be the most important of the post-Civil War amendments. In fact, it has been arguably the most influential of any of the Constitution’s 27  amendments, although not immediately upon ratification.

During the 20th Century, the 14th Amendment has dominated constitutional jurisprudence, for two main reasons. Reason 1 (which is less relevant to the Coleman argument): The 14th Amendment became the method by which states were required to abide by the Bill of Rights. The original Constitution and Bill of Rights limited only the federal government from abridging freedom of speech, press, religion, etc., etc.  Until the 20th Century, states could and did violate the guarantees of the Bill of Rights. Gradually, through the application of the “due process” clause to the states (which was part of the 14th Amendment), most of the guarantees of the Bill of Rights were held to be binding on state, as well as federal action. Listen carefully when Coleman’s lawyers summarize their argument, and you’ll generally hear the “due process” clause mentioned along with “equal protection.”

But Reason 2 for the 14th Amendment’s significance is our main topic today. The 14th Amendment decreed that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” That’s it. That’s the Equal Protection Clause. As you can see, it’s targeted directly at states (in fact, there is still no language in the constitutional text binding federal government actions to the principle of equal protection, but the Supreme Court has found some basis for doing so in the Fifth Amendment, which is the source of the original “due process” clause.)

The principal author of the 14th Amendment, by the way, and therefore the father of the Equal Protection clause, was Republican Congressman John Bingham of Ohio, who should probably be more famous than he is.

In its historical context, it’s clear that the Equal Protection Clause was fundamentally intended to apply to the treatment of the newly freed slaves in the southern states. It has since been applied to many other equality issues, and, at least once (Bush v. Gore) has been applied to the problem of disparities in the counting of ballots by different jurisdictions in the counting of ballots in the presidential election of 2000 in the state of Florida. Norm Coleman hopes that lightning will strike a second time in the Senate election of 2008 in the state of Minnesota. More on that in subsequent installments of this guided tour.

But for many decades, “equal protection” had no such applications. It did not accomplish even its original intended purpose of equal treatment under the law for white Americans and the freed slaves of the South. Which is where I’ll pick up when we resume.

You can also learn about all our free newsletter options.

Comments (13)

  1. Submitted by C. Shawn Green on 04/21/2009 - 10:43 am.

    My question is why you continue to assert that “Coleman’s is not a terrible argument” when you can’t find one neutral observer to back you up in that thought. Journalists today have an annoying tendency to want to be “fair and balanced” and to present “both sides of the issue” even in cases where there simply are not two legitimate “sides” of the argument. I mean, if Coleman’s legal position was that “bacon makes you smarter” – would you be writing, “even though every doctor we contacted disagrees, Coleman’s is not a terrible argument”? Sometimes it’s necessary to call a spade a spade. In this case, Coleman’s argument is simply moronic (there’s a reason the decision of the 3 judge panel bordered on mockery). As you note above, taken to it’s logical conclusion this argument would require that if 1 SINGLE illegal vote was counted ANYWHERE in the state that ALL similarly illegal ballots must also be counted. However, there’s no reason the legal argument would just apply to voting. For instance, if I got a speeding ticket in Hennepin County for going 70 mph in a 55 mph zone, all I would have to do is find one single instance of someone going unpunished for going 70 mph in a 55 mph zone in Anoka County to claim an equal protection violation. A spade is a spade and a stupid argument is a stupid argument. So either find multiple neutral credible legal experts who agree that it’s “not a terrible argument” or else stop saying it.

  2. Submitted by Brad Lundell on 04/21/2009 - 11:24 am.

    Nice primer Eric.

    I agree that, on it’s face, Coleman’s equal protection argument isn’t a bad one, but there does not appear to be a pattern of disenfranchisemnt stemming from the various county standards, which makes that argument, though logically warranting investigation, sterile in practice.

  3. Submitted by Brian Simon on 04/21/2009 - 11:34 am.

    “The one thing that cannot be changed, even by constitutional amendment, is that: “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.””

    That sounds like a compelling argument for the Franken team to use in favor of expediting the trial.

  4. Submitted by Ross Williams on 04/21/2009 - 12:11 pm.

    If you assume that there has been a violation of a voter’s equal protection by the different standards, doesn’t that violation apply to EVERY statewide election in the last cycle. Whether someone’s vote would have changed the outcome doesn’t seem to have anything to do with it.

    It seems to me we have allowed the candidates to claim a much larger role in the process of counting ballots than is appropriate. They have continued to treat the recount as if it was a part of their campaign contest. In fact, the election is over. The recount is about determining what already happened. The candidates are trying to use it to create an outcome in their favor.

    Frankly, the candidates and their campaigns should have been told to “but out”. Once the election was over, they were just interested observers. They have no more standing than any other voter.

  5. Submitted by john obrien on 04/21/2009 - 01:16 pm.

    It would be interesting to find quotes supplied by Norm Coleman during the 2000 Gore v Bush case. John

  6. Submitted by Howard Miller on 04/21/2009 - 03:15 pm.

    Interesting piece – I look forward to “the rest of the story” as one famous broadcaster used to put it

  7. Submitted by Jack Craypo on 04/21/2009 - 08:17 pm.

    I wish that instead of simply asserting that Coleman’s equal protecting argument has some merit, Mr. Black would kindly explain exactly what he sees in this argument that the judges and everyone else has missed.

    Virtually every observer, including the GOP Senate leaders, have conceded that this case is no longer about substantive legal questions, but instead is about stringing out the proceedings as long as is humanly possible to deny democrats another vote.

    I’m not sure why Mr. Black affects to believe that there is some legal question that still needs to be resolved. I am also unsure why Mr. Black fails to mention that even the Supreme Court explicitly stated in Bush v Gore decision that its use of the equal protection clause could not be used as a precident for any other case. In other words, it was a one-time deal to rescue George Bush.

    The obvious reason why the Supreme Court tried to slam that door shut is that equal protection standards would render elections impossible for all practical puroses. Why should some voters wait for hours while others wisk through. Why should voters have different machines? Different polling hours? Different levels of assistance?

    Norm Coleman’s equal protection argument would allow virtually every election to be challenged and allow elected offices to be held hostage for months or years. Democracy would be impossible.

    As was once said of the British Constitution, it works “because of the reasonableness on men.” Norm Coleman’s shabby,obstructionist equal protection argument represents a real affront to that reasonableness.

    If Mr. Black sees some point to an equal protection argument besides the obvious expedient for Republicans of denying Minnesota voters representation in the Senate, I wish he would tell us what it is because he and Norm are the only two people who see it.

  8. Submitted by Frank Bowden on 04/21/2009 - 08:24 pm.

    Coleman richly deserved the mockery of the Election Contest judges. In the election contest the burden of proof was on Coleman to demonstrate that the result of the election recount was wrong. Unfortunately for him and his attorneys, who certainly deserve to be criticized for the poor way they presented their case, Coleman presented little evidence that could be used to bolster their creative arguments. Thus the slam from the judges. Coleman and his attorneys have not been able to pound the facts or the law on their side; so they are pounding the table. They deserve ridicule, scorn, and righteous anger for depriving Minnesota of its fair representation in the Senate.

  9. Submitted by Mark Levi on 04/22/2009 - 11:07 am.

    The equal protection clause has been held to be applicable only to “those in equal circumstances” and is only required for a the feds and a state. A county, provided it does not violate state law has no restrictions on how it does counting the ballots. QED Coleman’s argument has no validity.

  10. Submitted by Brad Lundell on 04/22/2009 - 12:47 pm.

    Mark Levi, you said more eloquently what I was trying to say.

  11. Submitted by Paul Landskroener on 04/22/2009 - 12:49 pm.

    I’m as fervently anti-Norm Coleman as anyone, but I agree with Eric that his constitutional argument isn’t frivolous.

    But I’m willing to speculate that the MN Supreme Court will surprise us by avoiding the constitutional question and make a ruling that has not been discussed much in the press. (It may also be that Norm’s lawyers haven’t pressed it; I don’t know because I haven’t read their pleadings.)

    I think there’s a good chance that the MN Supreme Court will analyze the case as to whether the trial court correctly applied a “strict compliance” standard to the rejected absentee ballots instead of the more generous “substantial compliance” standard. This means that a relatively minor or technical deficiency will be overlooked if there are other sufficient indicia that the ballot is genuine and valid.

    For example, this is the principle that was applied in the recount that permitted a vote to be counted if the voter’s intent was clear, even if the voter didn’t precisely follow the instructions for filling out the ballot. I’m not enough of an expert in election law to know whether MN courts have traditionally required strict compliance when it comes to absentee ballots, but it seems clear that many county election officials did not.

    I would therefore not be surprised if the MN Supreme Court sends the case back to with instructions to count absentee ballots that appear to have substantially complied with the law — for example, those which are signed by witnesses but there is no proof that the witness is a registered voter but likewise no proof that the witness isn’t registered, or where a signature is missing because an election official obscured the instructions or signature line with a lable.

    This ruling would permit the court to avoid charges that it is disenfranchising voters on technicalities, count ballots that there is no real reason to dispute, and would avoid the constitutional argument.

    How many of the ~4000 ballots in question would meet this relaxed standard, I don’t know.

  12. Submitted by Joel Jensen on 04/22/2009 - 01:35 pm.

    A Republican asking for a bail out from the “men in black robes” that will rescue him and his campaign from the negative consequences (results) of their own failures and allow voters who did not comply with the rules to have their votes counted anyway, all based on the Equal Protection clause.

    How quaint.

    Let me try out a couple of ideas and see if anyone can identify the political party from which they usually come:

    —–Life’s Not Fair. Get Over It.

    —–You are not guaranteed the equality of results, only the equal protection under the law to try. Weather you succeed or fail is based on your choices; government only opens the door and clears the path.

    —–If we do a better job of ensuring integrity before votes are cast we can make the rest of the election process run more smoothly, increasing voter trust and driving an even higher turnout at the polls.

    —–Liberals attempt through judicial activism what they cannot win at the ballot box.

    Looks like maybe the worm has turned.

    Evidently the worm has turned.

  13. Submitted by Scott Holm on 04/23/2009 - 06:45 pm.

    The state of Minnesota has uniform standards regarding the absentee ballots. Whether individual election judges interpreted them differently is a matter of human nature, which cannot be legislated and is not a matter of equal protection. If there was any merit to this argument it would require every person to enforce laws identicaly, which is impossible. The other reason why the Minnesota Supreme Court must reject this argument is that if Coleman’s premise was entertained it would open the door for any loser of an election to appeal and delay the seating of the winner. This can’t be allowed in future elections and needs to be nipped in the bud before our election process degrades into chaos.

Leave a Reply