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

In addition to liberating Minnesota’s political scene from purgatory, the MN Supremes may also have helped the rest of the nation figure out how to handle the mystery of Bush v. Gore
By Eric Black but really by Ned Foley

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.

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…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.”