Norm Coleman's suit to stop Al Franken.

The law, lawyers, and the court.
March 18 2009 2:07 PM

Franken's Monster

Will Bush v. Gore bite Democrats in Coleman v. Franken?

Al Franken. Click image to expand.
Al Franken

Justice Antonin Scalia has repeatedly told questioners to "Get over it" when they raise questions about the fairness of Bush v. Gore, the Supreme Court's decision ending the 2000 Florida recount and handing the 43rd presidency to George W. Bush. The case is so radioactive that no justice on the Supreme Court has cited it in any opinion in the eight years since it was decided. And despite the opinion's broad declaration that it is unconstitutional for a state to "value one person's vote over that of another," the case has not led to the expansion of voting rights by the lower courts. No one has made lemonade from lemons, at least not yet.

Norm Coleman hopes to change that, or at least to make a plausible enough legal argument to delay the seating of Al Franken as Minnesota's junior U.S. senator. Coleman went into the election contest in January hoping to find enough problems to make up for the 225-vote advantage that Franken secured following the recount in the state. That outcome now appears unlikely. Minnesota has a pretty good record of election administration compared with other states, and the state canvassing board did a great job transparently and virtually unanimously ruling on disputed ballots during the state recount. But as the election contest drags on, Bush v. Gore is poised to become the monster that's hard to kill.

When the court hearing the contest finally rules, the losing side—which most people think will be Coleman—is expected to appeal to the state Supreme Court. There, Coleman will need more than an argument that the lower court counted the ballots wrong, a decision the state Supreme Court will not want to second-guess. So Coleman's lawyers and the Republican leadership are already previewing their backup argument: that the equal-protection principles of Bush v. Gore require the courts either to count more illegal absentee votes cast for him or to order a new election in the state.

The Republican leadership has professed a renewed love for Bush v. Gore. Senate Minority Leader Mitch McConnell recently urged Coleman to fight on to the state Supreme Court and U.S. Supreme Court if necessary, declaring, "We all remember Bush v. Gore." Sen. Lindsey Graham toldPolitico that"from what I can tell, there are legal issues well worth taking up in the [Supreme] Court. … I think the whole Bush v. Gore—using the same standards to count votes is a big issue."

The Minnesota Supreme Court recently ruled that Franken cannot get his certificate of election until the state election contest is resolved. To drag out the fight even longer, Sen. John Cornyn suggested that Coleman should bring a parallel suit in federal court should he lose in the state courts. All of this, of course, helps Republicans delay the day when the Senate has 59 Democrats.

But how good is Coleman's legal argument on the merits? Coleman appears to be making two somewhat contradictory arguments based on Bush v. Gore. First, he is arguing that because certain local election administrators counted some absentee ballots that they shouldn't have (such as absentee ballots signed in the wrong place on the ballot envelope), the state court is obligated under Bush v. Gore to count similar illegal votes cast in other Minnesota jurisdictions but not counted. A failure to do so, he argues, treats some voters' votes better than others. Second, Coleman argues that the Bush v. Gore ideal of treating all voters equally requires the court to count absentee ballots that "substantially complied" with the law, even if they did not comply with the literal requirements of the law.

It seems unlikely that either of these Bush v. Gore arguments would fare well in court. To begin with, there's a great debate over whether Bush v. Gore even has precedential value (the opinion contains unusual language limiting its application to "present circumstances") and, assuming it does have value, what the case means. Reading the ruling narrowly to require application of equal standards for ballots counted in state-mandated recounts, Coleman should lose. The problems Coleman points to with the alleged counting of certain illegal absentee ballots occurred before the recount; both the canvassing board and the court in the election contest appear to have achieved great uniformity in the treatment of similar problematic ballots. And certainly nothing in Bush v. Gore requires the counting of ballots that don't actually comply with the election statutes. If anything, counting such ballots could raise equal-protection problems. And since we cannot identify which illegal absentee ballots were cast for which candidate, we can't just take those out from the vote totals in the name of promoting equal protection.

Coleman's Bush v. Gore arguments depend on the most generous readings of the equal-protection principles of Bush v. Gore, which say that courts should find an equal-protection violation when there are systematic deviations across a state in how similar ballots are treated. Most courts have so far rejected such arguments. For example, both the 6th and 9th Circuits have rejected lower court rulings holding that it violates Bush v. Gore to use unreliable punch-card voting machines in some parts of a state rather than others.

Even if a court were to accept this generous reading of Bush v. Gore in the abstract, its application to Coleman is problematic. As Ned Foley explains, under Coleman's theory, if Coleman could find a jurisdiction in Minnesota that allowed felons to vote (contrary to state law), the court would have to count illegal votes cast by felons throughout the state. In essence, Coleman is asking the courts to compound equal-protection problems in the state by adding more illegal votes to the total.

Perhaps Coleman's lawyers would respond that Bush v. Gore then requires a new election because of errors of local election officials in administering a statewide election. But the logical end point of that argument requires states to take over from local election authorities the business of administering elections under uniform standards. This isn't a bad result, I'd argue, but one that that courts would be loath to adopt. It would open up just about every close election to a redo, because problems with election administration are endemic in the United States, with no guarantee that the redo will get the job done any better.

In the end, Coleman doesn't have a strong equal-protection argument. Then again, most of us thought George W. Bush didn't, either.

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and author of The Voting Wars.