Minnesota Supreme Court set to hear Coleman v. Franken
by Michelle Lore Associate Editor
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Update: See the MinnLawyer Blog for updates on Monday's arguments.
June 1 is an important day in the ongoing battle between Norm Coleman and Al Franken for Minnesota’s still-vacant U.S. Senate seat. On Monday the two meet in the Minnesota Supreme Court.For seven months now, Coleman and Franken have been haggling over who won the election last November. Immediate results of the election showed Coleman the winner by 215 votes, but an automatic recount undertaken by the state canvassing board showed Franken the victor by 225 votes. In April, following a seven-week trial by three judges, Franken was confirmed the winner by 312 votes.
A lot of people are tired of the ongoing saga, with some even calling for Coleman to throw in the towel. But Coleman is not giving up, and the fun is just beginning at the appellate level. Today the state’s highest court is hearing oral arguments in Coleman v. Franken.
Minneapolis attorney Joseph Friedberg, an attorney for Coleman who handled much of the trial in the case, spoke last month at a continuing legal education seminar — “Masters of the Courtroom: New Frontiers for Lawyers” — sponsored by the American College of Trial Lawyers and benefiting the Fund for Legal Aid Society.
Friedberg said that while you won’t read about it on blogs or hear it from the news media, “there wasn’t any fraud anywhere in this election and neither side claimed there was,” which is something Minnesota should be proud of.
Similarly, the trial judges in the case said that Minnesotans should be proud — proud of their election system — and ultimately concluded that there is “no evidence of a systematic problem of disenfranchisement in the state’s election system, including in its absentee-balloting procedures.”
“There are great arguments on both sides of this case,” Friedberg said. “It’s going up to where it was always going to go no matter who won and who lost. That’s the proper forum for it to be in. It’s going to be interesting.”
Minneapolis attorney James Langdon, who also represents Coleman, told Minnesota Lawyer last week that the Supreme Court’s decision will likely expose some of the flaws in the election process that have existed for a long time but haven’t come to light because there hasn’t been an election this close.
“This will give the Supreme Court an opportunity to confirm that Minnesota’s goal is to enfranchise as many voters as possible in the absence of any fraud, and we don’t have any indication of fraud here,” he said.
Attorneys for Franken declined to comment prior to oral argument.
‘Strict’ compliance
What are the parties really fighting about? What are the legal issues involved?
The Coleman camp contends the case is about equal protection and due process, particularly in relation to the counting of absentee ballots, while the Franken folks argue that neither constitutional concern is at play here.
In Minnesota, citizens may vote by absentee ballot if they meet certain requirements. Nearly 300,000 Minnesotans voted by absentee ballot in this election and fewer than 13,000 of the ballots were rejected. According to Friedberg, the case is “pretty much controlled” by the rejected absentee ballots.
Friedberg said that a major issue in the case has been whether Minnesota requires absentee voters to “substantially” comply or “strictly” comply with the statutory absentee voting requirements. He pointed out that about 60 percent of jurisdictions require substantial compliance with their absentee ballot requirements while 40 percent require strict compliance.
According to Coleman’s attorneys, caselaw and the court’s own longstanding policy favoring enfranchisement support the notion that Minnesota is a substantial compliance state. But on Feb. 13, midway though the trial, the trial court issued an order identifying the legal requirements for absentee voting, finding compulsory those requirements that were mandated by the Legislature.
Friedberg said that following the court’s ruling that Minnesota requires strict compliance, his team essentially tried the case to the appellate record.
Systemic differences
The Coleman team contends that election judges throughout the state utilized different standards in either rejecting or accepting absentee ballots on election night, and presented evidence to that effect at trial.
“This was not ‘garden variety’ human errors in failing to apply the statutory standard. … It resulted from intentional and systemic differences that impacted thousands of votes,” Coleman wrote in his brief to the court.
The difference in how absentee voters were treated, Coleman argued, violates equal protection and due process because it means that one’s absentee vote may or may not be counted depending on where that person lives in the state.
“[T]he constitutional guarantees of equal protection and due process mandate that a uniform standard be applied to all absentee ballots cast in the election — regardless of when the final determination whether each constitutes a legally cast vote is made,” Coleman wrote.
Coleman compares the case to the 2000 U.S. Supreme Court’s decision in Bush v. Gore, claiming there is “no logical distinction” between the unequal treatment of equivalent chads caused by the Florida Supreme Court’s imprecision (different counties interpreting the court’s holding differently) and the unequal local treatment of absentee ballots caused by imprecision in officials’ understanding and intentional application of the statutory standard set forth in Minn. Stat. sec. 203B.12, subd. 2.
“Just because Minnesota’s standard was set by statute rather than court decision does not excuse the constitutional requirement that the standard be applied uniformly,” Coleman wrote. “In both cases a standard has been inconsistently applied as the result of official imprecision.”
Essentially, Coleman views the case as follows: If the Supreme Court accepts the trial court’s determination that Minnesota is a strict compliance state, then the evidence adduced at trial proves that many absentee ballots were illegally counted because they did not comply with the statute.
If, on the other hand, the trial court erred in ruling that Minnesota is a strict compliance state, then the remaining uncounted absentee ballots should be judged by the same substantial compliance standard. Those ballots determined to have been rejected because they did not strictly comply with the statute should then be counted.
Coleman urges the court to “choose the latter approach and enfranchise all Minnesota voters, regardless of where they live.”
Minor variations
Franken contends that Coleman waived any constitutional arguments because they were not adequately raised before the trial court, and that even if the arguments aren’t waived, they fail on the merits.
While Minnesota’s election judges may have occasionally erred in determining whether to accept or reject certain absentee ballots, there is no evidence that those errors were deliberate or intentional or that they affected the outcome of the election, which is required for a successful equal protection claim, Franken argued in his brief.
Moreover, he continued, where some counties adopted somewhat different procedures for handling absentee ballots, the different procedures were consistent with the different resources, personnel and technology available to them.
“Despite these minor variations, election officials were governed by Minnesota’s uniform laws; the record is devoid of any evidence of clear or intentional discrimination; and officials did not act arbitrarily or contrary to law when they adopted and employed their procedures,” Franken wrote.
Franken also disputed Coleman’s reliance on Bush v. Gore, claiming that the facts in that case are unique and its holding limited. In Bush, the state court had ordered a “standardless” manual recount by officials with no training, mandated that only portions of the recount results be included in the totals and permitted at least one county to change its evaluative standards mid-count.
Here, rather than attack a “special instance” like that in Bush, Coleman attacks a long-established, statutorily imposed regime for processing absentee ballots, Franken wrote. “In short, even when [Coleman’s] allegations are taken at face value, the treatment of absentee ballots in Minnesota’s 2008 general election is quite ‘[u]nlike the factual situation presented in Florida.’”
Franken pointed out that after considering Coleman’s evidence, the trial court found that the standards used on Election Day were uniform and consistent with Minnesota state law. While there may have been some inadvertent, garden-variety errors and minor variations, they were the result of differences between counties’ resources and they commonly occur in every election.
The trial court’s findings are reasonable and compelled by the record, according to Franken.
Franken asserted that Coleman’s due process claim fails as well, because at most, Coleman complains of only minor differences in the methods officials used to determine if an absentee ballot complied with statutory requirements. A due process claim to an election fails absent a showing of patent and fundamental unfairness in the process.
In sum, Franken contends that the trial court judges correctly concluded that the overwhelming weight of the evidence indicates that the election was conducted “fairly, impartially and accurately.”
