April 21, 2009
Ned Foley's Tour de Force on the Equal Protection Issues in Coleman-Franken
The lawyers for both sides would be crazy not to meticulously study this blog post/law review article in disguise by Ned. I don't agree with his bottom line (on unanimity being the most important value here) and I don't agree with all aspects of the analysis, but this is a very clarifying essay.
Let me introduce one issue on the "local policy" point that Ned raises, and it is an issue I've raised many times before regarding post-election challenges: the question of laches. To the extent that different boards have different policies and standards for deciding which ballots are entitled to be counted under the state absentee ballot statutes, that's an issue that could (and in my view, usually must) be dealt with before an election (or before absentee ballots are considered for counting) rather than after. To allow the claim after gives an election contestant an impermissible option: if the count favors me, don't raise the potential problem. If it works against me, raise it later. To avoid post-election litigation, I've suggested courts should be open to challenge these problems pre-election, and bar such claims after the election as too late (under the doctrine of laches).
If that is right, any deviation in local policies, while potentially an enjoinable equal protection violation before the election under Ned's theory, cannot be the basis for a post-election remedy.
It seems pretty clear, from reading Ned's post and Coleman's second issue on appeal that the real thrust of this appeal will be an argument that---state law or not--the federal equal protection clause requires a NEW ELECTION because the initial counting of ballots was done with impermissible variation across localities. For reasons I've suggested, I think courts are not likely to embrace this reading of Bush v. Gore, even if Ned can make a principled argument in its favor.
If I have time, I'll offer some more thoughts on Ned's post. But read the whole thing.