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Impressive unanimity: The historical significance of Coleman v. Franken

Now that Norm Coleman has conceded in the aftermath of today's unanimous Minnesota Supreme Court ruling, the eight-month-long battle to determine who won last November's election for the state's U.S. Senate seat is finally over.  Even as the concession eclipses the opinion in political importance—and appropriately so—the opinion will begin its life as one of the most legally significant resolutions of a disputed election in U.S. history. 
 
Its historical significance lies in the fact that it is the first appellate court resolution of a major statewide election after Bush v. Gore.  The seven-month dispute over Washington's gubernatorial election of 2004 resulted in a trial court ruling, but it was never appealed.  Puerto Rico's disputed gubernatorial election of the same year did result in a 4-3 decision of the Puerto Rico Supreme Court (as well as a federal appeals court decision declining to intervene), but that precedent lacks the direct relevance to future U.S. elections that today's decision has.

Today's opinion discusses Bush v. Gore and its treatment of that U.S. Supreme Court decision in the 2000 presidential election is the most important judicial analysis of that precedent to date.  The reason for its importance is that it analyzes Bush v. Gore in a setting most comparable to Bush v. Gore itself: a post-election fight over which candidate won more votes.   Citations to Bush v. Gore in other contexts, like pre-election disputes over how to count provisional ballots, are merely invocations of that precedent for whatever analogical force it might have.  Coleman v. Franken is a consideration of Bush v. Gore in a situation where it most closely applies. 
 
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.   Here's the key passage from today's opinion on this point:
 
"[T]he essence of the equal protection problem in Bush was that there were no established standards under Florida statutes or provided by the state supreme court for determining voter intent . . .  Here, [by contrast,] there were clear statutory standards for acceptance or rejection of absentee ballots, about which all election officials received common training."
 
The Minnesota Supreme Court then made the additional observation that local variation regarding how to determine a voter's intent from the ballot itself raises additional concerns not present with respect to examining an absentee ballot envelope to determine voter eligibility.  Local discretion in "reviewing the face of the ballot itself," as the court noted, "create[s] opportunities for manipulation of the decision for political purposes."  There is less risk of that when "the actual votes on the ballot contained in the return envelope were not known to the election officials applying the standards." 
 
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. 
 
Coleman v. Franken will be influential in this way, in part, because of the strength of its reasoning: it reads well as a judicial opinion; its analysis is well-structured, and its logic is cogent.  It will be influential also because of its unanimity, in contrast to the 5-4 (or, if you focus exclusively on Equal Protection, 7-2) resolution of Bush v. Gore.  This unanimous affirmance of the unanimous trial court will stand as a model for how hard-fought battles over the winner of a high-stakes election should be handled. 
 
Coleman v. Franken is hardly the first time in U.S. history that a state supreme court has been able to diffuse by means of a unanimous ruling a contentious dispute over which candidate won a major statewide election.  As early as 1837, the Maine Supreme Court unanimously resolved a dispute over that state's gubernatorial election.  In 1855, moreover, the Wisconsin Supreme Court issued a major precedent that, along with public support for that ruling, caused the state's incumbent governor to give up the seat he was tenaciously clinging to (and threatening to use force to maintain). 
 
Nor is unanimity a guarantee of fairness or public perception of legitimacy.  In 1917, the three-member Arizona Supreme Court was unanimous in ousting the Republican incumbent governor and installing the Democratic challenger in his place.  But that ruling did not sit easily with everyone in the state, as the three members of the court were all themselves Democrats and they were reversing a fellow Democrat trial judge who had ruled in favor of the Republican incumbent. (The trial judge would later go on to serve as governor and justice of that court, and he never reconciled himself to the reversal of his ruling in this election contest, always maintaining that he had properly determined that the Republican incumbent had indeed won reelection.)  Thus, the unanimous Arizona Supreme Court ruling, given its circumstances, was unable to attain the historical status of impeccable impartiality that today's decision is likely to hold over time. 
 
It was not automatic for the Minnesota Supreme Court to be unanimous in this case, as Bush v. Gore itself indicates—in both the U.S. Supreme Court decision as well as the Florida Supreme Court decision it reversed.  There are other examples of unfortunate divided rulings in comparable cases, including the Illinois Supreme Court's 4-3 resolution of that state's disputed gubernatorial election of 1984.  Indeed, the Alabama Supreme Court's fractious mishandling of a dispute over the election of its own chief justice in 1994 required intervention of the federal appeals court to set things right (an intervention that paved the way for the U.S. Supreme Court's ruling in Bush v. Gore). 
 
The Minnesota Supreme Court's unanimity in Coleman v. Franken will stand the test of time as a model of judicial impartiality in the resolution of an intensely combative election contest because the membership of that court is politically diverse and because its decision follows upon the unanimity of a comparably diverse three-judge trial court.
 
No one can reasonably accuse Minnesota's judiciary of favoring Franken because he was a Democrat.  The ruling and the reasoning of the judiciary would have been the same if the positions of the candidates had been reversed.
 
No one can ask more of a judiciary faced with this kind of case.  In that sense, Minnesota has shown the nation how to resolve an election contest as fairly as is feasible. 
 
In the aftermath of Bush v. Gore, this reminder of how to do it right is most welcome. 
 
Edward B. Foley is a professor at the Ohio State University's Moritz College of Law, where he also directs its election law program.

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Comments (4)

It's a bit of ancient history but the '62 MN gubernatorial election was decided by 91 votes out of one million: http://www.mnhs.org/people/governors/gov/gov_33.htm, and was the subject of the book "Recount", by Prof Charles Backstrom: http://charlesbackstrom.com/ at the U of M.

In Bush v Gore, I was hoping someone would review that election, slow down, and ask, "what's the rush to judgement". Possibly the "clear statutory standards" in MN law were a result of the election of '62. As I recall, as a '64 student of Backstrom's, much of the back and forth (multiple recounts and trials) was over the marking of the paper ballots.

Good article; let's hope the author's suggestions are followed.

Thank you to Prof. Foley for background and likely historic significance of MN ruling. Feels good to see Minnesotans show the US supremes how it should be done. There's no way to rectify the flawed Bush v Gore ruling, but at least a new precedent and valuable guidelines have been established for future disputed elections.

Thank you for your analysis, Mr. Foley

I also thought the court ruling was exceptionally strong and well reasoned.

And I am especially pleased that the ruling sets a precedent of establishing that an Equal Rights Violation regarding counting of absentee ballots has not occurred if:

(1) There is not purposeful intent of election officials to count ballots in a manner that favors one candidate over another, or discriminates between classes of people.

(2) There are statutory requirements on how votes are to be counted during state elections that are applicable statewide.

I realize that the ruling purposely attempts to contrast differences between the circumstances of Coleman vs. Franken and Bush vs. Gore. It was necessary in order to establish that the court finding of an Equal Rights Violation in Bush vs. Gore is not applicable to Coleman vs. Franken. And the listing of many varied differences in circumstances provide protective insulation to the possibility of a reversal during subsequent appeal.

But now that we know the ruling will not be appealed, I do wish that statements were excluded in the ruling that suggest envelope-enclosed ballots vs. open-face ballots were another reason why Bush vs. Gore is not applicable.

For it may limit the value of the precedent to only when the counting of absentee ballots is the sole issue during litigation. Had the statements been excluded, the precedent should clearly apply to all votes that are counted during an election.

Professor Foley,

The adjective is Democratic trial judge, not Democrat trial judge. Just as it would be Republican trial judge, not Publican trial judge.