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.