The law, lawyers, and the court.

Franken's MonsterWill Bush v. Gore bite Democrats in Coleman v. Franken?

By Richard L. HasenPosted Wednesday, March 18, 2009, at 2:07 PM ET

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 43^rd 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.

RSS

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 told Politico 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.