June 30, 2009

Breaking News: Minnesota Supreme Court Decides Coleman-Franken, Unananimously in Favor of Franken

I have posted the opinion here. I'll have more analysis soon. The bottom line is that the Court says that Franken is entitled to an election certificate, but there is no direct order to the state's governor to sign one. We'll see what the governor does, if Coleman does not concede, as he well may at this point. If not, the opinion is not final until the period for rehearing ends (see the final footnote of the opinion). That's a ten day period, enough time to file an emergency stay application in the U.S. Supreme Court. It would go to Justice Alito, now circuit justice for the Eighth Circuit.

My earlier analysis of the potential issues in the U.S. Supreme Court, or a separate federal action, are in pieces at Slate, the LA Times, and the ACS Blog. I will post additional analysis as an update to this post after I read the decision.

UPDATE: Initial Thoughts on the Ruling, and What Happens Next

1. Pawlenty and the Certificate Let me start with the bottom line, because many of my readers care more about the politics than the law. I'll return to the law below. My best guess is the Coleman concedes by tomorrow. If that does not happen: Gov. Pawlenty has just enough wiggle room not to sign the certificate of election if Coleman files a stay/cert. petition with the United States Supreme Court within the 10-day window. He can say he wants to wait to see how things play out. If Coleman doesn't file and Pawlenty does nothing in 10 days, not only will Pawlenty face a lot of heat, he might be sued directly for an order of mandamus (or whatever proper procedure is used in Minnesota) to order him to sign the certificate.

2. A Stay in the U.S. Supreme Court I think a stay is very unlikely. First, you've now had eight judges look at this case (the three judge court and 5 of the members of the State Supreme Court) made up of judges with varied party backgrounds and they agree: Coleman could not find enough problems with the way the election was run to make out a constitutional violation. (Coleman was just unlucky in this regard; it could have just as easily been Franken. The election was razor-thin, and Minnesota's procedures pretty good, so there was not much for Coleman's lawyers to work with.) So the conservatives' red flags will not be raised, as they were in Florida 2000. Second, as I've explained in my Slate and ACS pieces linked above, Coleman's arguments depend upon an expansive reading of Bush v. Gore that would essentially enmesh the courts in the political thicket every time there was a close election and some deviations in how local election administrators enforced state election rules. That would mean a lot of litigation, state election law centralization, or both. That's not going to be appealing to any of the Justices. Third, the Court still has not cited Bush v. Gore in any opinion---majority, dissenting, or concurring---since the case was decided. It is still the third rail, and I don't see that they'd want to touch it, especially given what else they've been doing recently in election law. So I think Coleman's chances are slim in the Supremes.

3. The Legal Analysis of the MN Supreme Court This was exactly what I expected. The court found no due process problem, a la Roe v. Alabama (see my ACS post for more detail) because there was no changing of the election rules by the three judge court after the fact. (Indeed, a contrary ruling would have created a Roe issue for Franken). The court also saw no equal protection problem. First, there was no evidence of intentional discrimination against Coleman--the evidence just was not there and that was not really pleaded by Coleman. Second, there was no Bush v. Gore violation. The court followed the lower court in saying that any variations in election procedures were minor, and they were driven by differences in resources and good-faith attempts to administer state law as favored by the legislature. The court also rejected a number of evidenitary objections of Coleman.

4. Substantial Compliance, Strict Compliance, and the Democracy Canon The court followed its clear older precedents holding that absentee balloting rules are to be strictly construed: voters do not get any slack. (The court distinguished some cases giving slack to election officials, but not voters who make minor errors.) In my view, this was the correct result given the existing precedent, but my forthcoming Stanford Law Review article, The Democracy Canon, argues that voters should indeed be given slack when it comes to minor variations in following the rules when they attempt to vote. Minnesota generally follows the Democracy Canon, but not for absentee balloting. (On that question, it is in the minority of states). I suggested in an earlier blog post that the state Supreme Court should change that rule prospectively. The state Supreme Court says it should be changed by the legislature. My law review article cites to state legislatures that have legislated the Democracy Canon into state election law, and this is something both Democrats and Republicans in the Minnesota Legislature should do now---not only to honor Norm Coleman, but to honor the good faith efforts of voters to cast ballots.

5. What Took So Long? This is not the longest opinion in the world (32 pages). It is unanimous and follows the lower court. So why did it not issue sooner? I think the state Supreme Court wanted to get it right and explain itself clearly, not only because it owes that to the people of Minnesota and to the contestants, but also because of the potential for the case to be reviewed by the U.S. Supreme Court.

The people of Minnesota have much to be proud of in how their election was administered and in how the courts handled the contest. And no one should begrudge Norm Coleman for fighting this case as hard as he could. I would have expected Franken to do the same had he been on the losing end.

Posted by Rick Hasen at June 30, 2009 11:15 AM