May 15, 2009

Initial Thoughts on Coleman's Reply Brief

I have now had a chance to quickly read through Coleman's reply brief. This post assumes the reader is familiar with my posting of initial thoughts on Coleman's opening brief and Franken's brief.

1. A reply brief tries to draw a court's attention back to what the appellant believes is really important, and this brief is no exception. Almost the entire brief is dedicated to the constitutional argument (alternately sounding in equal protection and due process) that the trial court erred in failing to count 4,400 absentee ballots that should have been counted under laxer standards for absentee ballots applied by some counties. The preferred remedy is a remand to the trial court to count ballots under the laxer (substantial compliance) standard. This argument is not new, but it is more effective in this brief than in the opening brief because it is more highly focused. (There's also a fair bit of attention paid to whether or not these arguments were waived, as Franken contends, showing that the Coleman team thinks this is a serious enough argument to devote a few pages to.)

2. As I said in describing this argument as it appeared in the opening brief, this is not a frivolous argument. But it depends upon a very liberal construction of Bush v. Gore (as I explained here). My irony meter went off the charts when I saw the Coleman team citing to the district court opinion in Black v. McGuffage, a federal district court opinion in Illinois reading Bush v. Gore liberally to hold that the use of unreliable punch card balloting in only part of a state constitutes an equal protection violation. (It is an argument that, as I show here in way too much detail, has been rejected by most of the appellate courts that have considered it.) It is an argument applied to the context of election contests with unpalatable policy consequences for courts. To accept it would require courts considering election contests to order recounts using lax standards whenever such lax standards were used by some election officials in a jurisdiction, but not by all. (As an aside, it is not clear how this would solve any equal protection problem, because the count would still include ballots counted under a strict standard in some of the jurisdictions.)

3. I see the argument on pages 14-15, arguing for a due process violation under Roe v. Alabama, as setting up the potential follow-on federal lawsuit that some Republicans have threatened. I think the argument is likely to fail. I've written about Roe's application to this case in detail here. This case is Roe turned on its head. In Roe a federal court blocked a state court from using a new, laxer standard to review absentee ballots. Coleman would be trying to use Roe to get a federal court to require a state court to use a laxer standard in a recount, on grounds that some jurisdictions in Minnesota had used that standard. Aside from the fact that courts would have to swallow hard to read lax interpretation of election laws as a constitutional requirement (though I've argued that outside the context of election contests they should be read in favor of the voters as a matter of policy), there was no uniform state policy of laxity in Minnesota in treating absentee ballots, as there was uniformity of strictness in the counties in Roe. Moreover, in this case you have existing state Supreme Court holdings that absentee ballot laws are to be read strictly, which is what the trial court did in this contest.

4. The Coleman brief does not address the question of whether the state supreme court should order certification at the end of this case.

5. Oral argument is set for June 1. I would expect a decision not too long after that. The court now has two weeks (and three weekends) to get a draft opinion (or opinions) together in advance of oral argument. For that reason, I also don't expect oral argument to make much difference in this case.

Posted by Rick Hasen at May 15, 2009 12:31 PM