Coleman's Equal Protection Claim
The theory of Coleman's case has been a moving target. He first filed his contest on January 6, but the filing (LARGE PDF) took great pains not to specify exactly what problems Coleman had with the election. Lots of "by way of example only"s and complaints about "matters and things." Franken sought to dismiss the contest for being insufficiently specific, but the motion to dismiss failed.
Inside, I take a stab at discussing Coleman's ever-evolving equal protection claim, as I understand it.
As I have previously pointed out, Coleman has long intended to bring a claim based on the disparate treatment of absentee ballots, even though he didn't specify the claim in his notice of contest. As I also pointed out, Coleman's public posture would have to give way to legal reality. A cherry-picking strategy is not consistent with a claim that ballots were not treated equally. You can only credibly argue one or the other, not both. Coleman has abandoned his original claim that 650 specific ballots should be counted for a more equal-protection-friendly concept that certain categories of ballots were treated unequally. Coleman's new argument has no apparent regard for the demographic characteristics of the ballots in those categories (though it might be a stretch to suggest he is ignorant of that information).
This new argument has posed its own legal problems for Coleman. I want to address certain features of Coleman's equal protection claim, which has become difficult to pin down in the haze of the accelerated trial schedule. Just what is Coleman's theory regarding rejected absentee ballots? A few basic points stand out in my mind as I try to digest the daily flood of trial news.
The Right/Privilege Distinction
Coleman correctly pointed out in his opening argument that the right/privilege distinction is no longer relevant.
The Fourteenth Amendment is a general prohibition against arbitrary and unreasonable governmental action. It no longer suffices to say that although a government may not deprive someone of a right arbitrarily, it may do so in the case of a privilege. Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The right-privilege distinction has been rejected as a method of analysis in Fourteenth Amendment cases, because the question is not whether a person has a right to something denied by the government, but whether the government acted lawfully in depriving him of it.
Thompson v. Gallagher, 489 F.2d 443, (5th Cir. 1973).
The right/privilige distinction is a now abandoned method of analyzing an alleged violation of constitutional rights. It is the one apparently featured in the Minnesota election law case Bell v. Gannaway that set a strict compliance standard for absentee ballots.
In order to preserve the purity and integrity of elections, then, the absentee voter statutes, so far as the acts and duties of the voter are concerned, must be held to be mandatory in all their substantial requirements. These laws are not designed to insure a vote, but rather to permit a vote in a manner not provided by common law. As a result, voters who seek to vote under these provisions must be held to a strict compliance therewith.
Bell quoted a 1937 Minnesota Supreme Court case that used the privilige/right distinction.
The upshot is that the statute at issue, setting the requirements for accepting absentee ballots hasn't apparently been interpreted in light of a modern equal protection analysis, rather than the now abandoned privilege/right distinction.
Facial vs. As-Applied
So assume that Coleman is asserting that the absentee ballot standards violate the 14th amendment of the US Constitution, and the contest panel should apply the modern analysis rather than giving effect to the Minnesota caselaw that relies on the abandoned analysis. How is that done?
Well, first more needs to be known about Coleman's claim. Is he claiming the statute (Minn. Stat. §203B.12 requires an absentee ballot to be accepted as long as it meets four criteria) is unconstitutional on its face, or as applied? If as-applied, as applied to whom? These are the first questions haven't been clarified to my satisfaction.
Facial challenges to the constitutionality of statutes are now disfavored by the US Supreme court. They require a court to essentially decide controversies that are not presently before them. Assume then that he is asserting that the application of the absentee ballot statute was unconsitutional... but as applied to the entire class of absentee ballots cast and rejected in this election. Or, maybe, as applied to the absentee ballots that fall into their 16 categories (though the exact population appears to still be in flux—"at least 4,500" or and probably a "significantly larger" number, as argued at the summary judgment hearing). Like I say, Coleman's claim isn't exactly clear to me.
Invoking Bush v. Gore, he suggests that the statute gives county and local officials standardless discretion, which was applied unequally and in violation of the constitution. He tried to piggyback on a suit brought by individual absentee voters to convert it into a class action. He seeks as a remedy for the contest panel to re-reconsider all the rejected absentee ballots and determine the eligibility of the ballots according to a uniform standard.
Modern Equal Protection Analysis vs. De Novo Review
So when does something violate equal protection? Here's the modern analysis:
Is the claimant a member of a suspect or quasi-suspect class or does the issue involve a fundamental right? If so, a heightened level of scrutiny applies (either strict or intermediate scrutiny). Otherwise, rational basis scrutiny applies. The court, applying the appropriate level of scrutiny, determines whether a constitutional right (equal protection) was violated. Note that none of the levels of scrutiny in equal protection analysis are called de novo.
Because Coleman seeks to assert the rights of absentee voters, maybe the issue involves a fundamental right: the right to vote. No. The right to vote by absentee ballot is not a fundamental right. Rational basis scrutiny applies. If the state has a legitimate interest (preventing fraud) and the application of the law was rationally related to that interest, the determinations of the local officials should be upheld and not reviewed de novo in the election contest.
De novo (where the court makes its own determination of the application of the law, substituting its judgment for the previous determination) is what Coleman wants. But under an equal protection analysis he can't get it unless he first proves that the local officials were unreasonable or arbitrary in their application of the law. It's just not part of the equal protection analysis.
De novo review might be had on a ballot-by-ballot basis when the claim is that the statute was misapplied to a particular ballot, but that doesn't appear to be Coleman's theory (at present). He's asserting the rights of the entire class of rejected-ballot voters under the constitution against, not under, the statute. So he has to clear the constitutional hurdle before getting de novo review. He picked the height of the bar, now he has to vault it. To the extent that he thinks he can get de novo review of his entire class of ballots on an equal protection theory without first proving the law was applied arbitrarily or irrationally, he is trying to walk under the bar.
Coleman is asking the court to conclude that variation among the counties in the application of the law proves the application was arbitrary or irrational. But counties in Minnesota do not all sing the same tune with respect to all manner of laws. I've gotten speeding tickets in Anoka and Ramsey county. Ramsey county lets you ask for deferred prosection for first offenses, where if you don't speed again for at least one year, you aren't prosecuted for your violation. Anoka doesn't. Clearly disparate treatment. But arbitrary, irrational, and a violation of equal protection?
Estoppel and Laches: The Equity Punchline
Finally, the famed estoppel argument, that Coleman has "flip flopped" so he loses. Coleman is waging a PR campaign alleging that Franken doesn't want to count "all the votes" and using legal technicalities to prevent it from happening. But he's being deliberately obtuse. Surprised?
Any Minnesota voter could have asserted their own claim that their ballot should be counted. About 70 did. Coleman seeks to step into the shoes of every voter who filed a rejected absentee ballot and assert their rights on their behalf. After taking a variety of legal and public positions contrary to and inconsistent with those rights, should Coleman now be the one to assert those claims? Asserting estoppel doesn't suggest that the argument is a bad argument, it merely points out that a certain person (Coleman) doesn't deserve to make it. Any other Minnesota voter would have clean hands, and would not be estopped from doing what Coleman seeks to do.
I don't think that estoppel is a "winning" argument for Franken. I think he wins on the rational basis scrutiny of the application of the absentee ballot law. But estoppel is a fair backstop and provides a psychological justification for a judge to view Coleman's arguments skeptically.
Bush v. Gore
I end where I ended a previous diary, with a note about misconceptions surrounding Bush v. Gore. Appealing to Bush v. Gore does not contradict the Supreme Court's expression that it was "limited to the present circumstances," nor does it require a Bush v. Gore-style outcome in this case (stop counting; whoever's ahead wins). The court's expression of the law governing Bush v. Gore is not unique to the case—it constitutes a persuasive, if not controlling, interpretation of constitutional requirements governing all recounts.
No, the reason Bush v. Gore doesn't apply in this case, for this issue, is not because SCOTUS said so, but because it is factually distinct. In Bush v. Gore, SCOTUS addressed the lack of statewide standards in the conduct of a recount for US President. But the issue here is the acceptance of absentee ballots during a general election for US Senate where there were statewide standards. Completely different, doesn't apply. Not because SCOTUS said so, but merely because of the operation of ordinary common law principles.
So these are just a few of my thoughts, strung together with just the bare minimum of research and reliance on my memory of what I learned to pass the bar. I don't practice law in these areas, so I claim no expertise. This is not legal advice. If you want to file your own election contest, seek legal representation, and please don't do it in Minnesota. I welcome corrections, suggestions, or insight.
And I just know you haven't had enough, so head over to WineRev's daily chronicle of MN-Sen events.