May 12, 2009 | Commentary on Legal Issues
On June 1, the Minnesota Supreme Court will hear argument on the closest U.S. Senate race in the states history. Republican Norm Coleman is appealing the decision of a three-judge trial court that declared Al Franken the winner--by a margin of 312 votes out of 3 million cast. Earlier, the Minnesota Canvassing Board had given Franken a win by only 225 votes. The election night count had Coleman the winner by 215 votes.
Coleman's attorneys will argue that both election officials and the trial court gave disparate treatment to absentee ballots, thereby violating the Equal Protection Clause of the 14th Amendment. They will cite Bush v. Gore, the 2000 decision that secured George Bush victory in Florida. There, the Supreme Court ruled that "once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."
The problem in Florida was that different counties arbitrarily and capriciously applied different and varying rules on what would be considered a vote with punch-card ballots. This is all too similar to the disparate treatment of absentee ballots (and other problems) present in the Minnesota recount.
When conducting the recount, the Minnesota Canvassing Board directed county election officials to reexamine absentee ballots that had been rejected for not complying with state law. Coleman's lawyers presented evidence that various Minnesota counties applied those state rules differently. Republican-dominated counties tended to apply a strict interpretation of the law, while Democratically-dominated counties applied a much looser standard, accepting absentee ballots that would have been rejected in other counties.
The trial court said that such disparate treatment was irrelevant. However, it then applied a strict standard to the numerous rejected absentee ballots the Coleman legal team asked the court to reconsider. In other words, the court failed to apply one, uniform standard to all of the absentee ballots cast, a clear and obvious violation of Equal Protection.
There is also substantial evidence of double-counting during the recount. A number of counties made duplicates of original paper ballots that were too defective to be counted by Minnesota's automatic tabulating equipment. Such duplicates (and the originals) are supposed to be labeled and kept segregated, but some counties apparently failed to do that. This resulted in both original and duplicate ballots being included in the hand recount. One of the members of the Minnesota Canvassing Board admitted that there was "a very good likelihood" of double counting, but another member dismissed the concern "because there was very little of it." Of course, in an election decided by only 300 votes, it would take "very little" to change the outcome.
The trial court refused to let Coleman inspect those problem precincts, as allowed under Minnesota law. It then ruled that Coleman had failed to establish that there was double-counting in the recount. Of course, it is pretty to hard to establish an error when the court denies you the discovery needed to prove it!
The officially-ordered recount was supposed to be a hand recount of all paper ballots cast. But in one Minneapolis precinct, the electronic machine total was used instead, supposedly because of some missing ballots. A local election official at first said (and later denied) that it was possible that some ballots had been accidentally run through the computer scanners twice. Yet the trial court allowed the machine total instead of the hand recount total, once again applying a different recount rule in this Democratic precinct than in every other Minnesota precinct.
What should have happened in this case (and did not) is that the trial court should have ensured that all of the counties in Minnesota uniformly complied with the state's rules on absentee ballots when conducting the recount. The problem of double-counting should have been thoroughly investigated and corrected. By not doing so, the trial court valued the votes of Minnesotans differently and violated the Equal Protection Clause.
In its decision, the trial court couldn't even get the law right. The court concluded that it "lacks jurisdiction to consider Contestants' Equal Protection claim...Evidence relating to these claims is preserved for the United States Senate." I am sure that most judges would be surprised to learn that courts are not entitled to review 14th Amendment violations in voting and election litigation. That conclusion is, of course, completely wrong under long-established precedent.
The trial court concludes its order by talking about how the "citizens of Minnesota should be proud of their election system" and its election officials, who "are well-trained, fair, and conscientious and performed their duties admirably." Here, the court appears to be more concerned with trying to preserve Minnesota's reputation than undertaking an in-depth review that would have revealed sloppy procedures and mistakes made by its election officials. If the Minnesota Supreme Court fails to correct these mistakes, Senator Coleman can doubtless claim in federal court that the recount process violated his rights under the Constitution.
Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.
First Appeared in Human Events