Ladies and gentlemen, the contest is over! On June 30, 2009, the Minnesota Supreme Court determined that “Saturday Night Live” alumnus Al Franken garnered just 312 more legally-cast votes in the race to represent the state in the United States Senate than incumbent Norm Coleman. The initial result of the election–held nearly eight months ago–was in favor of Coleman by a margin of 206 votes. Because the margin of victory represented less than one-half of one percent of the more than 2.9 million votes cast, Minnesota law required a manual recount that lasted one and one half months. Of the roughly 300,000 absentee ballots cast, election officials and candidates determined that 933 had been improperly rejected for various reasons. The State Canvassing Board (the statutorily required overseer of elections) determined on January 5, 2009 that Franken won by 225 votes. The next day, Coleman formally contested the result of the recount and asserted his right to serve as Senator. At trial, Coleman successfully persuaded the three-judge panel to count an additional 351 absentee ballots. On April 13, 2009 the court held that Franken had won by 312 votes; Coleman appealed to the Minnesota Supreme Court.

Coleman’s first argument posited that prior to the recount, election officials had used a “substantial” compliance standard with regards to absentee ballots’ satisfaction of statutory requirements. However, during the recount, a court order was issued that identified ten categories of absentee ballots that had been rejected for failure to comply with the requirements and would remain uncounted. Coleman asserted that the order created a “strict” compliance standard in order for previously rejected absentee ballots to be counted and thereby violated his right to substantive due process. The court rejected this argument because precedent in the area of substantive due process (as it relates to election procedures) requires a dual showing that (1) the changed election procedure was likely relied upon by voters during the election and (2) the change in procedure resulted in significant disenfranchisement of voters. The court found that the statutory requirements implicitly require their strict application. Thus the established procedure that voters were assumed to rely upon was that the requirements would be strictly applied unless Coleman had shown that voters relied upon a different, lower standard. The court also noted that precedent binds the court from altering the outcome of an election due to “[m]ere fraud or mistake” on the part of election officials in deciding to accept or reject ballots.

Coleman’s second constitutional challenge asserted that variations in absentee ballot counting procedures used throughout the state to comply with statutory election requirements, as well as the trial court’s application of those requirements, violated the Equal Protection Clauses of the United States and Minnesota Constitutions. The court first noted that not every variation in the application of a facially-neutral law implicates an equal protection violation. Indeed, not even an erroneous performance of a statutory duty will invoke the equal protection clause. In order for this argument to have succeeded, Coleman would have needed to demonstrate that the variations in the procedures were part of a deliberate scheme with the intention of effecting discrimination among absentee voters. The court found that Coleman did not show any evidence of intentional discrimination, and thus neither the election judges nor the trial court erred in their application of the election laws.

Evidentiary law provided the basis for Coleman’s next two allegations. He first argued that the trial court erroneously excluded evidence of absentee ballots that would have violated the “strict” compliance standards created by the court order if they had been subjected to those standards on election day. In rejecting this argument, the court pointed to a statute which essentially required that any challenges to a voter’s or a ballot’s legitimacy must be made before the ballot is slipped into the ballot box and mixed with other ballots. Coleman’s second evidentiary challenge asserted that exclusion of evidence of variations in election procedures across voting precincts was similarly improper. However, because Coleman conceded that such evidence would not have contributed any weight to his legal arguments distinct from the support provided by the evidence that was admitted, there was no error.

Coleman then argued that the trial court erred when it denied his petition for inspection of certain ballots that he alleged were double-counted. He admitted at trial that he could prove such double-counting occurred through the testimony of election officials and that the inspection would not be necessary for his case to succeed. Precedent noted that such an inspection is essentially a discovery mechanism for use in trial preparation and that candidates do not have an absolute right to an inspection. Rather, a party seeking inspection has to show that it is needed in order to prepare for the trial of the election contest. The trial court determined that Coleman failed to clear this bar and actually injured his claim with his concession that he could prevail without the inspection. Because he made no additional assertion on appeal that an inspection would uncover relevant information that was not available at trial, his fifth argument failed.

The final hurdle the court crossed before calling the election for Franken was Coleman’s claim that the use of a precinct’s election day results in tabulating the recount was in error. During the recount, it was found that 132 votes had been lost, and thus the proper decision (absent any countervailing evidence) was to presume that the election day results were correct and proper for use in the final count. The court found this procedure was supported by sufficient precedent, and thus Coleman’s sixth and final argument was rejected.

So here we are: it is the year 2009, Minnesotans have been lacking a Senator for nearly eight months, and American voters must still express doubt about the validity of the outcome of even the most important public elections. Between widely varying procedures, lost ballots, hanging chads, and the like, it seems like there exists a surplus of “X factors” that could taint the results of the elections that are the foundation of our democratic republic. While calls for electoral reform have likely persisted since the ancient Greeks first began using a voting system, the United States’ present infrastructure and technological capabilities make the lack of a supremely reliable electoral system embarrassing at best and outrageous at worst. Until legislators are able to come up with a fool-proof system for voters to use in electing public officials, cases like this will persist and continue to harm the reputation of our electoral system. But hey, at least Minnesotans and SNL fans realized that the problems with our electoral system pale in comparison to those in countries like Iran.

– Jason Albosta

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