April 30, 2009

Initial Thoughts on the Coleman Brief

You can find the brief here. I have now had a chance to give the brief a very quick first read, and I'm ready to offer some tentative thoughts (subject to revision as I study the brief more closely in the coming days). Here's the headline: Coleman's appellate arguments are the ones I anticipated when I read the trial court's decision. I continue to believe his equal protection argument is unlikely to be accepted by the Minnesota Supreme Court, but his arguments are not frivolous and will require careful attention from the Minnesota Supreme Court.

Here are some more detailed observations:

1. Coleman devotes virtually his entire brief to a single argument: it is a constitutional denial of equal protection and due process for Franken to be elected under a procedure that treated some absentee ballots under a looser "substantial compliance" standard and other ballots, during the election contest itself, under a tougher "strict compliance" standard. Coleman lays out three possible remedies to these purported violations: count more absentee ballots under the looser "substantial compliance" standard, throw out ballots that benefitted Franken under a uniform "strict compliance" standard, or declare there is no winner and require a new election. (He also makes a half-hearted argument for proportionate reduction, though it is not clear how that helps him.) Coleman emphasizes the first of these remedies.

2. Part of the reason that Coleman's battle is so uphill is that there are some important precedents and statutes against him. There are Minnesota precedents followed by the trial court holding that absentee voting is a privilege and not a right, and therefore the usual "substantial compliance" rule applied to Minnesota election statutes does not apply; there are precedents saying that failure to object to absentee ballots before they are counted waives any objections (a variation on my laches point, given that once an absentee ballot is counted, it can't be taken out of the count because no one knows who the voter chose); and the Minnesota contest statutes do not allow for the remedy of a new election. (If that latter remedy is imposed, it will have to be as a matter of constitutional law.)

3. Though Coleman tries valiantly to distinguish precedents, he's got a harder battle not only because arguing for a change of law is hard: if the court changes any of these laws now, it offers Franken an equal protection argument under Roe v. Alabama (as I've explained). Coleman tries to rely on Roe, but it seems to me that the trial court followed, rather than changed, existing law, making Roe inapposite for Coleman's argument.

4. I have a lot of sympathy for Coleman's argument for a substantial compliance standard for absentee ballots, for reasons I've explained in this forthcoming paper. I'd love to see the Minnesota Supreme Court prospectively change the rule, so that it matches the majority of other states, in treating absentee voting as a right and not a privilege, and therefore applying the "substantial compliance" rule to absentee ballots statutes as well. But the court cannot do so now, in the middle of the election, without giving Franken the due process argument from Roe.

5. The problem with the local deviations point that Coleman raises, is the laches point: "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."

6. To the extent Coleman focuses on the argument that more ballots should be counted, does he have any evidence he can offer (perhaps from where those ballots come from) that the counting of such ballots will make up the 315 vote benefit of Franken? Has anyone tried to do such a calculation?

7. I cannot offer any opinion as to whether Coleman's brief accurately sets out the facts. I just have not followed this case closely enough to know whether the Franken team will be able to argue with the local variations as described in Coleman's opening brief.

Posted by Rick Hasen at April 30, 2009 12:51 PM