June 01, 2009

Live Blogging the Coleman Franken Oral Argument

Now that the oral arguments have concluded, here are my tentative thoughts (you can find my earlier live blog below the fold):

1. It is always dangerous to guess how a court is going to come out based upon oral argument. But there's good reason here to believe that the state Supreme Court Justices went into this with their minds made up: this case has been expedited pursuant to state law, and they've had two weeks (including three weekends) to think about how to decide this case based upon the briefs. They likely had a draft opinion or set of opinions in front of them. So this oral argument may be more of a tip off than most.

2. There's no question that Coleman's side got much tougher question than Franken's side, and based upon oral argument I would not be surprised to see a unanimous decision in favor of Franken in a relatively short time frame (within two weeks--maybe sooner). I counted at least three of the five Justices who were much more willing to accept Franken's arguments than Coleman's arguments, and who asked Coleman's side much more difficult questions.

3. It is not a surprise that Coleman would have a tougher time, and this is not a reflection on the quality of the lawyering on both sides. I expected a good argument from Marc Elias, for Franken, whom I know. I did not have any experience hearing Friedberg. But he was very good, addressing questions directly, not hiding behind rhetoric and not afraid to concede points he knew he could not win.

4. The reason Coleman is having a harder time is that he's got a tougher road to success:
a. The state Supreme Court is going to deter to the factual findings of the trial court, and those factual findings favor Franken.
b. The state Supreme Court's existing precedent in terms of treating absentee ballots strictly as a matter of fraud-prevention favors Franken. A change in that standard now, as I've argued, would create a due process argument for Franken by constituting a change in the rules of the election after the fact.
c. Even if the court accepted some of Coleman's arguments in the abstract---such as that there were some votes illegally counted by some jurisdictions (or alternatively, some ballots accepted under a looser "substantial compliance" standard)-- that doesn't mean Coleman would win his case. He'd have to show that there were enough problems to make a difference in the outcome of the election (a point the Justices expressed a great deal of skepticism about, in their discussion of the failure of the offer of proof).
d. On the merits, the Justices mentioned ways of distinguishing other cases in which there were due process problems, such as when voters relied upon rules of the game that were changed later. There was an interesting discussion of whether Bush v. Gore eliminated the requirement that a challenger prove intentional discrimination to make out an equal protection argument. It was the only line of argument that I saw potentially helping Coleman, but it did not appear to be enough to overcome the Justice's skepticism.

Near the end of the argument, Friedberg suggested that if the state Supreme Court affirmed under a strict compliance standard, it would create (or exacerbate) the federal constitutional problems that Coleman has been pushing. These are arguments Coleman may try to advance, assuming he loses in this court, in a cert. petition in the U.S. Supreme Court, or in a separate federal lawsuit. In pieces at Slate, the ACS Blog, and the LA Times, I have considered both the merits of those constitutional arguments and whether they need to be addressed in a separate federal court action.

The live blog notes appear after the fold.

Initial question: Aren't our requirements mandatory?

Friedberg: Mandatory only before the election, but directory/substantial compliance afterwards.

Heavy discussion of the Democracy Canon. Discussion of whether the Democracy Canon should apply to absentee ballots.

Question as to whether there can be statutory violations that don't raise equal protection or due process arguments.

One justice references Griffin, Roe, says they are clearly distinguishable in the sense that there was an announced procedure before the election and after the election the election officials change the rules. Question: did election officials engage in widespread misconduct by announcing a procedure, announce a procedure, and then voter reliance after the rules were changed.

Justice says it is not the election officials who changed the rules, but the panel changed the rules. How do you get around the federal cases that rely on fraud, widespread misconduct, but there's no evidence here of fraud or misconduct.

Shouldn't we judge the findings of fact under a clearly erroneous standard.

These are all questions showing the Justices (at least the ones asking questions) are very skeptical of Coleman's appeal.

More skeptical questions. Judges want to know whether there really was an offer of proof? It looks like an inadequate offer of proof. No admissible evidence to determine whether the plaintiff has met its burden.

Extensive discussion of the failure of proof here. Not like an offer of proof that the judges are used to seeing. There are no identified voters, for example. Justice Anderson says he "really has a problem" with this kind of offer of proof.

[So far two rulings from U.S. Supreme Court today, but neither in election law cases.]

Heavy discussion of Roe case. A justice says that the key in Roe is reliance by the voters. Friedberg disagrees. (My explanation of Roe is here.) He concedes there's not a good reliance argument.

Justice Anderson says lots of courts take a position that reliance is the key here. (Justices Anderson is a Republican appointee.)

Justices Anderson, Gildea, and Page (at least those three) seem very skeptical of Coleman's arguments, despite the fact that Friedberg is doing the best he can with what he has to work with. (Gildea is also a Republican appointee.)

Friedberg gets a final question from Anderson, before he sits down before rebuttal.

I've been listening more than watching. I don't know if Justice Dietzen asked any questions. He was criticized (in my view unfairly) for not recusing after giving campaign contributions to Coleman (before he became a Justice).

Justice Page: To the extent that the U.S. Senate makes the final decision here, how do we issue an opinion without it being an advisory opinion?

Elias: Lower court found it had jurisdiction to determine who has the most lawful votes, even if Senate decides who is seated.

J. Gildea: How can we tell from this record, who got the most legal votes?

Elias: Coleman is trying to use a broad brush to show problems. Diligent local officials looked at each ballot. "Every ballot tells a story."

J. Anderson: Were there illegally cast ballots included?

Elias says: No proof of specific problems. But in every election there are problems.

J. Anderson: Isn't there enough here to implicate due process and equal protection concerns?

Elias: Laches. Should have challenged at the precinct. Discussion of whether there was an opportunity to review decisions on absentee ballots. Justice Dietzen expresses concern about some ballots that were lacking signature.

Extensive discussion of why there might have been problems. Elias returns to waiver and laches issues. J. Dietzen says that Elias did not plead waiver in his answer. So should that itself be waived?

Justice Dietzen seems to be the most skeptical of Franken's side.

Elias seems to be getting some easier estions from some of the other justices.

Elias notes that Minnesota has not followed other states in using substantial compliance/Democracy Canon for absentee ballots.

Justice Anderson: Doesn't Bush v. Gore throw out an intentional discrimination standard from equal protection law?

Elias: BvG means conduct can become so arbitrary that it rises to the level of intentionality. (This reminds me of Roy Shotland's interesting work on Bush v. Gore as a due process case. Others, including Abner Greene, have made some interesting arguments along these lines. I'm thinking also of Dan Tokaji's Michigan piece.)

Friedberg is back up on rebuttal.

J. Dietzen returns to question whether Coleman made a sufficient order of proof. He returns to "every ballot has a story." Friedberg says this is "perhaps the biggest non-sequitur in American legal history." [Really?]

Discussion of burdens of proof. J. Page: The other side is saying we need to see the ballot so we know whether ballots were improperly accepted or rejected.

Friedberg concedes absolutely no evidence of election official fraud or voter fraud.

Says absentee voting is no longer a privilege.

Justice (?) says fraud can occur with absentee ballots, so it is a good reason to have a stricter standard.

Justice Dietzen asks whether absentee ballots could have been challenged under the statute at the polling place? Friedberg says that election officials did not read it that way.

The court concludes: "We shall take this matter under advisement and an opinion shall be forthcoming."

[I will put a summary up of the argument at the top of this post in a few minutes.]

Posted by Rick Hasen at June 1, 2009 07:02 AM