Campaign Diaries

Norm Coleman had 10 days to file a simple notice of his intention to appeal the trial court’s decision to award the election to Al Franken. He made ample use of that time: It took him 7 days to take the step of delivering a short document - which he finally did today, confirming what everyone already knew: Coleman is appealing and the Minnesota Senate race goes on for yet another round.

State law holds than an election review “takes precedence over all other matters before the Supreme Court,” so we might not have to wait that long before moving on to the oral arguments. Franken’s lawyers asked judges to order all briefs to be delivered by May 4th, in only two weeks. That could allow for an oral argument as early as May - and a ruling as early as June.

(Now that the issue has finally arrived in front of the state Supreme Court, we will be looking to see which Justices recuse themselves from the case. The big question mark is whether Christopher Dietzen will recuse himself based on the fact that he donated to Norm Coleman in 2001 and 2004)

While the Coleman camp has yet to file a detailed brief outlining its argument, his lawyers gave a preview of its claims - and there are essentially identical to those voiced during the first trial. Once again, the GOP will address three issues: (1) potentially duplicated ballots, (2) Minneapolis’s missing envelope and (3) the need to count more absentee ballots based on the equal protection clause.

Nothing new, then, but an interesting question: Do Republicans realize the price they would pay were they to win Minnesota’s Senate race? (This question was partially inspired by this post by billmon.)

What Coleman is asking the Minnesota Supreme Court (and perhaps federal judges later) is to rule an election fundamentally flawed because a few counties accepted absentee ballots they should have rejected - thus disenfranchising those voters whose absentee ballots were rightfully rejected by other counties. Whatever the merits of this argument, it would require a broader application of equal protection on electoral processes than is currently allowed. In other words: If state or federal judges were to rule that Minnesota’s electoral process breached equal protection, it would expend the use of equal protection in electoral cases.

This would be a blessing for Democrats. Progressives often argue that electoral results are distorted by manifestly unfair and unequal situations. For instance, the fact that different neighborhoods have different voting equipments creates far more tangibly disenfranchised voters than a county’s erroneously accepting a few hundred absentee ballots. And what if a machine malfunctions? should the entire election be invalidated? What about differences in the length of voting lines? You might remember that Georgia voters had to wait as much as 12 hours last fall. For a judge to open the door to such litigation could make for an upheaval in the way elections are conducted - to the left’s delight. (This goes beyond elections: The left generally supports a more aggressive judicial use of the equal protection clause.)

In 2000, the Supreme Court intervened in the presidential election and the Bush v. Gore case by invoking equal protection; but the majority opinion, authored by Antonin Scalia, made sure that its findings would not be used as the precedent of further lawsuits. “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities,” wrote Scalia in 2000. There is a reason the conservative Justice sough to limit the future usage of his decision. Might Coleman’s lawsuit succeed in doing what Bush v. Gore stopped short of?

What is particularly untenable about Coleman’s position is that there is no indication that he stands to gain if a court rules that thousands of additional absentee ballots need to be counted! Sure, expanding the universe of valid ballots is Coleman’s only hope of overtaking Franken’s lead but remember: As far as Coleman is concerned, a favorable ruling would be for ballots to be counted - not for him to suddenly be declared the winner; he would still need to gain a 312-vote edge out of those new ballots, a difficult task given that the Democrat has expanded his lead every time a new batch of ballots has been included in the count; his lead jumped to 215 votes in early January and to 312 votes in early April.

It would be quite an ironic turn if the state Supreme Court handed Coleman’s lawyers a dramatic legal victory in endorsing their vision of equal protection but Franken nevertheless picked-up more votes and kept his lead.