May 11, 2009

Initial Thoughts on Franken's Minnesota Supreme Court Brief

I have now had a chance to give a quick first read to Al Franken's Respondent's Brief in the Coleman-Franken U.S. Senate contest. (The brief is available here). My initial thoughts on Coleman's opening brief are here. Coleman's reply brief is due Friday [corrected], and oral argument before the Minnesota Supreme Court in June 1. Here are my thoughts on Franken's brief.

1. This is an extremely well done brief. When learning to be an appellate laywer, I recall hearing from Ellis Horvitz, dean of California appellate lawyers, that sometimes the most appropriate tone on response to an argument is a "stifled yawn." That's how this brief comes across. It takes an incredible amount of restraint (and confidence) not to respond to every argument and sub-argument of an opponent, and to treat potentially major issues with the back of one's hand. That's how this brief deals with Coleman's argument. It devotes only 5 pages (of 44) to refuting Coleman's equal protection argument, which is certainly Coleman's strongest appellate argument. The Franken brief (at least on my first read through) does not even tackle some of Coleman's weaker arguments, such as that for proportional reduction. The message that comes across is: Coleman's arguments are mostly waived; those that are not waived are inconsistent, and even if they were accepted they do not demonstrate the right to the remedy of a new election.

2. There are not too many surprises in the way that Franken's team argues the Bush v. Gore issue; the arguments go as I anticipated. I would have expected a bit more attention paid to the details in the record of the variations in local policy on dealing with absentee ballots. Still, having not heard all the evidence and having not reviewed the record, perhaps this was a wise choice. Franken does not claim that Bush v. Gore has no precedential value. But the brief seeks to limit the holding as a matter of both fact and law.

3. The brief states that the due process argument is waived because it was not properly raised in the trial court (I don't know that this is smart strategy---getting it adjudicated here might save a further adjudication in a later federal court action). On the merits they contend, as I have argued, that it will be Franken, rather than Coleman, who has a potential due process argument if the state Supreme Court changes the standards for counting absentee ballots later in the game.

4. At the end of the brief, Franken asks the court to state that its decision ends the state election process, thereby giving the winner at the state Supreme Court the immediate right to an election certificate. I've said that I think that's a strong argument as to a follow-on separate federal lawsuit, but it is less clear as to whether a petition for cert. to the U.S. Supreme Court would be considered part of the state process that could delay the issuance of a certificate. It could well be that if the state supreme court sides with Franken, it will order the issuance of a certificate after a short time, enough time for Coleman to seek a stay from the U.S. Supreme Court.

5. There's still so much irony here in the position of the parties. We already had the Republican candidate shouting out the mantra of "count every vote," and arguing that substantial compliance rather than strict compliance with election law rules as good enough. Here, we have the Democratic candidate's lawyers arguing for a narrow reading of the equal protection holding in Bush v. Gore (I thought it was particularly unpersuasive to argue that absentee voters don't get the same equal protection rights (p. 17: "Appellants challenge its treatment of absentee ballots--which, prior to acceptance, are entitled to significantly less constitutional scrutiny"). There's also a ringing endorsement of the Supreme Court's decision in the Crawford voter identification case, particularly the point that the state can act to prevent voter fraud even in the absence of any good evidence that it exists.

6. I still think Coleman has an uphill battle here. It would not surprise me if Franken won in an unanimous decision at the state Supreme Court. Even if he does, Michael Steele says "Hell No" on giving up. We'll see.

Posted by Rick Hasen at May 11, 2009 02:53 PM