Finally, we get closer to the possible legal/constitutional meaning of “equal protection” for the Coleman/Franken election. But first this quick reminder on where we stand in the case:

By the close of business next Monday, Team Franken will file its reply brief to the Minnesota Supreme Court. The Supremes will hear oral arguments on June 1 and then will have what it needs to decide the Coleman appeal.

As the previous installments of this series have indicated, “equal protection” is not a concept from the original Constitution. Even after it was added in 1868, via 14th Amendment as a way of securing the rights of the freed slaves, Equal Protection was largely nullified by the hideous “separate but equal” doctrine of Plessy v. Ferguson. The Supreme Court rescued “Equal Protection” in 1954, in the glorious Brown ruling, which ruled that racially segregated public schools were inherently unequal.

Now come Norm Coleman and his lawyers claiming that they have been unequally protected. The fundamental argument is this:

Between different counties on Election Day, and then during the recount, and then again during the Election Contest phase, the standards used to judge the acceptability of absentee ballots have varied. In other words, Team Coleman has argued (and, I would say, pretty nearly proved) that absentee ballots were not all treated equally.

As I have said before, this is not ideal. Similar ballots should be treated alike. The Coleman/Franken case has certainly alerted Minnesotans that its election system can improve on this score and I have little doubt that it will improve for future elections. And Coleman’s argument an absentee ballot envelope with a particular flaw might have been rejected in one county while a similarly flawed ballot was accepted in another county, is not a terrible argument.

But what to do about the election that was already held?

If all Coleman had to show to get a do-over — or any of the other remedies his lawyers have proposed — was that absentee ballots were not all treated alike, he would be in great shape. His problem is that to get any of those remedies, he has to convince the Minnesota Supreme Court that the variations violate the 14th Amendment to the U.S. Constitution, which in the legal hierarchy outranks state laws and precedents. The amendment says:

“No state shall … deny to any person within its jurisdiction the equal protection of the laws.”

So, did Minnesota deny the equal protection of its laws …

… to thousands of absentee voters by rejecting their absentee ballots?

One big problem for Coleman is that the equal protection clause does not guarantee perfect equality.

As interpreted by the Supreme Court, the clause has been used to strike down state laws under limited circumstances. But the court has more often declined to strike down state laws, even though the laws allowed what might reasonably be called unequal treatment of individuals or groups.

Where’s the ‘suspect classification’

Figuring out what kinds of inequalities or disparate treatment violate the Equal Protection clause is complicated. But, based on the Supreme Court cases addressing that issue, the first principle seems to be this:

If the state singles out a group by race, religion or national origin for different treatment, the court will deem the law highly suspect. In fact, racial or ethnic classifications, in the jurisprudence of Equal Protection law, are called “suspect classifications.” The Supreme Court has said that such laws should be subjected to “strict scrutiny,” and can be sustained only if the unequal treatment is absolutely necessary to achieve an important governmental interest.

“Strict scrutiny” is Supreme Court code for: “This law is probably going down.” In the modern era, few laws subjected to “strict scrutiny” have passed the test. But in one famous (or infamous) case, the Supreme Court decided that the equal protection clause did not prevent the government during World War II from rounding up Californians of Japanese descent, including U.S. citizens –without any showing that individual Japanese-Americans had done anything suspicious — and holding them in internment camps indefinitely.

In upholding these actions by 7-2, the U.S. Supremes held that the orders were not motivated by racial prejudice and that the 1941 Japanese attack on Pearl Harbor created an overriding governmental interest in preventing Japanese-Americans from committing acts of espionage or sabotage that would facilitate a Japanese strike against the U.S. West Coast.

The Supreme Court has generally held that state actions discriminating on the basis of gender are not as suspect as those based on race. This area of Supreme Court law is still evolving as the idea of gender equality is a more recent historical phenomenon than racial equality. But for now, the Supreme Court subjects gender-based classifications to what it has called “intermediate scrutiny.” In other words, it is easier (but not too easy) for a state to justify gender-based discrimination.

Most other systems of classification are held to the lowest level of scrutiny, usually called the “rational basis” test. In a 1993 ruling, the court wrote that economic regulations, for example, that make distinctions based on criteria other than race or gender, can be justified if “there is any conceivable state of facts that could provide a rational basis for the classification.” That’s a pretty low standard.

I have not seen either side argue this matter in Franken-Coleman. But it might go like this: Minnesota has a rational basis for conducting its statewide elections by county, city and other smaller units, because it would be unwieldy to try to administer the thousands of voting precincts around the state out of one central state office. In distributing the responsibility for the election to the counties, there is liable to be some county-by-county variation in the way it is done, but as long as the variations do not have a disparate impact on the voting rights of Minnesotans by race, ethnicity or gender, it passes the rational basis test.

The “suspect classification” analysis is bad for Coleman’s argument. If unequal treatment occurred, it occurred based on whether a particular Minnesota absentee voter happened to live in one of the counties that was more strict in deciding which absentee ballots to count, versus a voter who lived in one of the counties that was less careful or demanding in assessing absentee ballot envelopes.

Discrimination based on geography, namely county of residence, is not one of the “suspect classifications.” Coleman has made no showing that inconsistencies in the acceptance of absentee ballots had what equal protection law calls a “disparate impact” on one of the suspect classes.

If, for example, there was evidence that, without mentioning race or national origin, the Minnesota system for assessing absentee ballots had the effect of disenfranchising some racial or ethnic group more than others, it would help Coleman’s equal protection argument. And if he had evidence that, in constructing its election system, Minnesota had secretly intended to increase the voting power of some groups at the expense of others, it would help his argument. Generally, an equal protection argument works much better if it addresses an intentional act of bias.

Team Coleman did go out of its way, in its Supreme Court brief, to use the word “intentional” in describing the county-by-county disparities. By this, he argued that the variations were not random, but were in many instances based on policy decisions, made at the county level, to strictly or less strictly check absentee ballot envelopes. But that is different than saying that the counties did so in order to help or hurt either side in the election or any suspect class of Minnesota voters have their ballots counted.

The ThreeJudges of the Election Contest Court, in specifically rejecting Coleman’s equal protection argument, wrote that Coleman has:

“Not shown discrimination, arbitrary treatment, ill-will or malfeasance on the part of Minnesota election officials.”

There is another route for Coleman, or the Minnesota Supreme Court, to go that might make Coleman’s equal protection argument a better fit for the existing Supreme Court precedents.

The U.S. Supremes have ruled that state actions that place a burden on the most fundamental rights of Americans should also be subjected to strict scrutiny. The right to vote definitely is listed among the fundamental rights.

Coleman’s brief to the Minnesota Supreme Court, submitted last week, did not directly address that argument (I’m not sure why). But I will try to say something intelligible about whether the fact that it is a case about voting helps Coleman’s argument in a subsequent installment of this apparently endless series on Coleman/Franken and Equal Protection.