Coleman v. Franken, Bush v. Gore and Ned Foley v. the Wall Street Journal

I’ve never actually met Ohio State Election Law Prof. Ned Foley in person, but have come to rely on him during the Coleman/Franken Megillah. In late-night phone calls and via email he has helped me understand the legal issues, and has also shared his expertise through his own writing and he has done so again with two pieces since the big ruling.

On Wednesday, in a piece actually published on MinnPost (but I wanted to specifically commend it to Black Ink readers who don’t read everything on the site) Foley argued that in addition to rescuing Minnesotans from the long recount/contest/appeal purgatory, Tuesday’s big ruling was also the first appellate case that dealt with the elusive meaning of the Bush v. Gore/Florida 2000 precedent in a post-election matter that had several similarities to Bush v. Gore (BvG).

In addition to its weirdness and internal contradiction, BvG included a strange passage that sort of did, sort of didn’t advice future courts not to consider it a binding precedent. Foley says the MN Supremes says Coleman v. Franken provides important guidance for future cases:

“The Minnesota Supreme Court opinion, like the unanimous trial court ruling it affirms, holds that the Equal Protection principle of Bush v. Gore is not violated when a state statute provides a clear and specific rule for local officials to follow in the counting of ballots, even if some local officials fail to follow that clear rule.  As long as the local officials’ failure to follow the clear and specific state rule, even if deliberate, was not designed to favor one candidate over another (or otherwise discriminate improperly among classes of citizens), that failure—while regrettable—is not unconstitutional.

…The Minnesota Supreme Court thus cabins the scope of Bush v. Gore, making it the exception rather than the rule when it comes to evaluating the conduct of local election officials in vote-counting process.  This treatment of Bush v. Gore is likely to be persuasive to other state supreme courts as well as to federal appeals courts and, indeed, the U.S. Supreme Court itself.  Thus, Coleman v. Franken will set the governing standard for analysis of Equal Protection claims in post-election disputes over which candidate won, and Bush v. Gore will constitute a narrow exception to that governing standard.”

I think nailed Foley it.The very next day, in an email that he also posted on his OSU blog, Foley — whom I have come to know as a generous, cautious, courteous scholar — could not restrain the umbrage he took from the ridiculous Wednesday morning Wall Street Journal editorial that said “Mr. Franken now goes to the Senate having effectively stolen an election.”

The WSJ editorial page has long been a bastion of Republican/conservative opinion. But it used to have a reputation one of the smartest places to read those views. No more. The Journal is now so blinded by partisanship that it is willing to implicate the Minnesota Canvassing Board, the three-judge panel, and the Minnesota Supreme Court — each of which had more Republicans than Democrats and each of which reached unanimous rulings, of a conspiracy to steal the election on behalf of Democrat Franken — except that the Journal isn’t even honest enough to acknowledge this libel.

Foley does a better and fuller job of exposing absurdity of the editorial, and concludes:

“In sum, whatever criticism the WSJ or others might have about the way the Canvassing Board or the state judiciary handled the issues presented to them, this election was about as far from ‘stolen’ as any extraordinarily close and intensely disputed election could be–and to use that term in this context is to rob it of appropriate meaning for those situations in which election officials abuse their power to throw an election for a preferred candidate, thereby robbing an opponent of a rightful victory.  LBJ’s Senate primary victory in 1948 is generally understood to be a “stolen” election of this kind, where the use of the term is appropriate.”

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Comments (12)

  1. Submitted by John E Iacono on 07/02/2009 - 02:55 pm.

    If this election was stolen, it was certainly not at the judicial levels. The SC decision is one of the most thoughtful and precise I have ever read.

    I side with Foley on this one.

    If it was stolen, it happened at much prior levels with proof impossible to obtain. But that’s another question, not within the purview of the judges, and in my thinking it is unfair to blame them.

  2. Submitted by Paul Brandon on 07/02/2009 - 05:07 pm.

    The problem is that any election that is this close is within the margin of error of the process, and thus a tie.
    We have no practical way short of repeating the process of dealing with this.
    And no variety of IRV would help; it would just change the situations in which ties occurred — creating as many as it eliminated.

  3. Submitted by Eric Ferguson on 07/02/2009 - 07:20 pm.

    Paul, IRV was never intended to eliminate close elections. It was intended to eliminate plurality elections. In this case, my guess is IRV would have prevented the recount because it looks like Barkely took more votes from Franken than Coleman, so my best guess is IRV would have given Franken a clear win. But even if that’s wrong and the recount would have been needed anyway, the fact is IRV would put an end to 42% winners.

  4. Submitted by Eric Ferguson on 07/02/2009 - 07:21 pm.

    What Eric, the WSJ used to be one of the smartest places to read conservative views? Please say you’re joking, or at least mixing up the news and editorial divisions. The editorial section has always been Fox News for literate people.

  5. Submitted by Paul Brandon on 07/02/2009 - 11:03 pm.

    EricF:
    I agree completely on IRV and close elections.
    I’ve supported it for many years, and know what it is and isn’t.
    My only point was that some seem to regard it as a universal panacea.
    In THIS case it almost certainly would have resulted in a clear Franken win, but in others it still could turn a clear plurality into a tie.
    I was just trying to point out a weakness in our system (tie votes) for which I haven’t seen a good solution (and there may not be one).
    Even if we mandated a revote when the margin was less than 0.1%, we would still have to deal with outcomes that were right at that margin at still would be contested.

  6. Submitted by Howard Miller on 07/03/2009 - 10:57 am.

    I got indigestion watching Secretary of State Harris make rulings in Florida in the 2000 election – hardly a neutral, she was a co-chair of Bush’s election campaign if i recall correctly.

    No such comparable figure exists in this concluded Minnesota Senate election. It gets tiresome to have partisan posters repeat accusations of election irregularities, even fraud, when there is no factual basis for these allegations. Just check postings at the Strib any time Franken’s name is raised for numerous examples.

    One has to wonder why the facts do not sway the perceptions and beliefs of these mean-speaking partisans.

  7. Submitted by John E Iacono on 07/03/2009 - 11:02 am.

    Considering all the alternatives out there, including early voting instead of absentee ballots, instant run-offs, and mandatory revotes,

    my considered conclusion is that we should keep our present pretty good system, and clarify how absentee ballots MUST be handled, no matter the inconvenience to the individual districts.

    Included in this would be a mandate that if a voter registration form is included in the absentee a SEPARATE envelope must also be included for mailing it in.

    Also, EVERY voter must be checked for proper registration, with the checker initialing a “registration check” box.

    And signatures MUST be checked against the registration signature, again with the checker initialing a “signature check” box.

    The absence of proper witness signatures MUST invalidate the ballot.

    And finally, ballots (disregarded or not) must have the initials of the official judging them, so that disparate patterns could be reviewed by interested parties prior to the election.

    I believe if these precautionary regulations were in place, the present system would have very few leaks for absentee ballots.

    Review by two judges to be certain all duplicate ballots carry the words “copy” in the upper right corner would pretty much give us a bulletproof system, I think.

    I have not seen problems with same day voting except for the “losing” of ballots cast. The penalty for “losing” ballots should be clearly that the ballots on hand are the only ones counted, to eliminate the double voting problem that using the machine count can raise.

  8. Submitted by David Rasmussen on 07/03/2009 - 11:05 am.

    Per published reports, WSJ has moved to shorter, less comprehensive articles in the Murdoch era. I would be interested to learn whether there is evidence that WSJ news is more biased than it used to be. I agree with Eric (#4) regarding the WSJ editorial section.

  9. Submitted by Howard Miller on 07/03/2009 - 11:59 am.

    I read the WSJ pretty regularly, and I believe that their news coverage has deteriorated in the Murdoch ownership era – in choice of stories, in choice of headlines to frame those stories, and in the quality and depth of coverage. It’s simply not as good a news source. Neither is the NY Times, who’s reporters have made some terrible journalistic mistakes.

    Bless news sources like MinnPost, Minnesota Independent, and the Washington Independent, for they’re filling a vacuum left by the increased corporatization of news coverage in the MSM

  10. Submitted by Peter Nickitas on 07/05/2009 - 01:37 am.

    I agree. Ned Foley summed up the Coleman v. Franken correctly. The Minnesota Supreme Court brought merit on itself and the people of the state in their decision and the actions of Chief Justice Magnuson and Justice Barry Anderson on the Canvassing Board. The Court’s decision makes it clear: the election recount statutes requires no change. With respect to the Wall Street Journal and other reactionary ideologues, the facts never got in the way of an opportunity to argue falsely, as long as they can argue their ideology loudly. Criticism of Ned Foley is just another verse in that same old song.

    I also commend the Minnesota Supreme Court for its wise, well-reasoned decision upholding IRV in Minneapolis. The shrill opponents of IRV raised every specious argument against IRV. The only argument that could have won was one that would have required the Court to confuse IRV with the Bucklin System it struck down in 1915. The Court rose to the occasion and refused the bait.

    IRV would have avoided a lengthy recount in 2008. The process would have identified a candidate acceptable to a majority of voters before any other candidate. Clearly the election would have hinged upon the voters who chose Barkley first and would have chosen Franken or Coleman second. The winner would have known where his strengths and weaknesses would have lain, and the respect he would have had to show, to Independent voters.

    IRV makes primaries unnecessary, encourages positive campaigning, and diminishes the power of money. To those who say IRV denies equal protection, IRV allows every voter to rank as many candidates as she wants, and assures that her vote is counted once for one candidate only for each contest. If someone does not get IRV, or does not like IRV, nothing is stopping you from only voting for a #1 choice. To those who say IRV is too complicated, I say this: if you can count, you can vote, and if you vote, you can count.

  11. Submitted by Paul Brandon on 07/05/2009 - 11:03 pm.

    Peter–
    Primaries are part of the party endorsement process, not the election itself.
    IRV would not eliminate primaries any more than it would eliminate caucuses, unless you believe that we should eliminate political parties themselves, which is another question.

  12. Submitted by Sheila Ehrich on 07/06/2009 - 12:00 pm.

    Let’s face it, if the election was in any way “stolen” it was through the ineptitude of Coleman, et al. They either didn’t understand the Three Judges decision in which they said, “Prove it.”, or they were unable to come up with the proof that more of the ballots should have been opened. So if Republicans and the Right want to blame anyone, they should blame their own candidate.

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