June 30, 2009
Franken is Minnesota's US Senator: The Minnesota Supreme Court distinguishes Bush v. Gore
The Minnesota Supreme Court has issued its decision regarding the Franken-Coleman election (from November 2008). With Coleman's concession, this ends the saga; Al Franken will be seated, giving the Democratic party a 60 person "super" majority.
The 32 page per curiam opinion (pdf here) was joined by five justices (not participating were two justices, CJ Magnuson, seated in bottom row center of photo below; and G. Barry Anderson; standing second from right in photo below). From a constitutional law perspective, perhaps one of the more interesting
different local election jurisdictions treated similarly situated absentee ballots differently
and that the trial court imposed a stricter standard for compliance with absentee voting
requirements than did election officials, and that those differences violate equal
protection under Bush.
The trial court concluded that Bush is distinguishable in several important respects
and, as a result, does not support Coleman‟s equal protection claim. We agree. In Bush,
the Supreme Court specifically noted that it was not addressing the question of “whether
local entities, in the exercise of their expertise, may develop different systems for implementing elections.” Variations in local practices for implementing
absentee voting procedures are, at least in part, the question at issue here. As previously
noted, the trial court here found that the disparities in application of the statutory
standards on which Coleman relies are the product of local jurisdictions‟ use of different
methods to ensure compliance with the same statutory standards; that jurisdictions
adopted policies they deemed necessary to ensure that absentee voting procedures would
be available to their residents, in accordance with statutory requirements, given the
resources available to them; and that differences in available resources, personnel,
procedures, and technology necessarily affected the procedures used by local election
officials in reviewing absentee ballots. As we noted previously, Coleman has not
demonstrated that these findings are clearly erroneous.
Additionally, the essence of the equal protection problem addressed in Bush was
that there were no established standards under Florida statutes or provided by the state
supreme court for determining voter intent; as a result, in the recount process each county
(indeed, each recount location within a county) was left to set its own standards for
discerning voter intent. Here, there were clear statutory standards for acceptance or rejection of absentee ballots, about which all election officials received
Finally, the decision to be made by Florida election officials with which the
Supreme Court was concerned in Bush was voter intent—that is, for whom the ballot was
cast—as reflected on ballots already cast in the election. In Bush, officials conducting the recount were reviewing the face of the ballot itself, creating opportunities for manipulation of the decision for political purposes. Here, the decision at issue was whether to accept or reject absentee ballot return envelopes before they were opened, meaning that the actual votes on the ballot contained in the return envelope were not known to the election officials applying the standards. In summary, we conclude that Bush v. Gore is not applicable and does not support Coleman‟s equal protection claim.
For all of these reasons, we conclude that Coleman has not proven that either
election officials or the trial court violated his right to equal protection.
Opinion at 20-23 (footnotes and citations omitted).
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