MN-Sen: The Return of Bush v. Gore?

By Big Tent Democrat, Section Elections 2008
Posted on Tue Mar 17, 2009 at 11:29:49 AM EST
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Politico is reporting that Republicans are pushing Norm Coleman to go to the Supreme Court with his Bush v. Gore argument:

Top Republicans are encouraging Coleman to be as litigious as possible and take his fight all the way to the U.S. Supreme Court if he loses this round, believing that an elongated court fight is worth it if they can continue to deny Democrats the 59th Senate seat that Franken would represent. And in pushing a possible Supreme Court conclusion, Republicans are raising case history that makes Democrats shudder: Bush v. Gore.

I shudder at the mention of Bush v. Gore, but not because I fear its impact in this case. I shudder because it was the most blatant example of a lack of judicial honesty that I have seen. More . . .

I do wonder at how the Republicans see this case going to federal court outside of a petition for certiorari from an adverse ruling by the Minnesota Supreme Court. These statements are perplexing:

Senate Minority Leader Mitch McConnell (R-Ky.) on Friday first blessed the idea of encouraging Coleman to take his fight into federal appeals court and potentially all the way up to the Supreme Court. . . . Judiciary Committee member Jeff Sessions (R-Ala.) . . . said he “absolutely” would encourage Coleman to take his fight to federal court if he loses.

(Emphasis supplied.) What's that about? A federal appeals court? Take his fight to federal court? I assume Coleman has raised the issue in the contest of the Minnesota Senate election. If he hasn't, its not clear to me he gets another bite at the apple by filing a federal action. The Minnesota election contest law states that:

When a contest relates to the office of senator or a member of the house of representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election.

I suppose Coleman might argue that the Bush v. Gore equal protection question was not within the subject matter jurisdiction of the election contest court. Hard to see how that argument wins though, especially since I assume he raised and argued the point before the ECC and will do so if he appeals to the Minnesota Supreme Court. It seems to me that a cert petition to the Supreme Court of the United States would be the only way to get the issue heard before a federal court now.

I am also perplexed by this statement from the Politico article:

The actual ruling in the Coleman-Franken case may not be straightforward in declaring a winner. Following a seven-week trial, the judges are expected to issue a series of rulings based on arguments advanced by both sides. Either side could appeal to the three-judge panel or petition the state Supreme Court within 10 days of the ruling. And they also can choose to mount a battle in federal appeals court or eventually the U.S. Supreme Court.

(Emphasis supplied.) Why would the ECC issue a "series of rulings" as opposed to one opinion with findings of fact and law that decides the issues in the case? And of course, the idea of going to a federal appeals court is simply wrong. Even if Coleman could get a fresh start in federal court, I assume it would start in the district court.

I believe the real question is will the GOP caucus in the Senate attempt to impede the seating of Franken if the Supreme Court of Minnesota declares him the winner. Assuming Coleman files a cert petition, will the GOP argue the contest has not been finally decided at that point seems to be the real question here, not whether Coleman will file a cert petititon.

Another question is what will Minnesota Governor Tim Pawlenty do at that point -- will he block a certification? I think Senate Democrats are prepared to try and seat Franken after the Minnesota Supreme Court rules. Will the Senate Republicans try and stop it?

Speaking for me only

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MN-Sen: The Return of Bush v. Gore? | 50 comments (50 topical)

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Didn't the Court (5.00 / 2) (#1)
by jbindc on Tue Mar 17, 2009 at 11:34:29 AM EST

write in Bush v. Gore?

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

They have an interesting post about this at Volokh

It's not clear to me why (5.00 / 2) (#4)
by Demi Moaned on Tue Mar 17, 2009 at 11:39:41 AM EST

... the Senate Democrats didn't seat him earlier. Didn't the Secretary of State certify the election results?

If the shoe had been on the other foot, the Republicans certainly have seated their candidate if they controlled the Senate.

No, becuase state law requires (5.00 / 1) (#8)
by DFLer on Tue Mar 17, 2009 at 11:45:44 AM EST

waiting for the court case.
help!

Eric? Steve M? Please give the clear answer.


Franken (5.00 / 1) (#30)
by eric on Tue Mar 17, 2009 at 02:11:13 PM EST

did ask the MN Supreme Court to order the issuance of the election certificate, and that request was denied.

The statute is pretty clear on this, in my view.

"* * * In case of a contest, an election certificate shall not be issued until a court of proper jurisdiction has finally determined the contest.* * *

Minn. Stat. § 204C.40


And the Republicans would have still (none / 0) (#14)
by Militarytracy on Tue Mar 17, 2009 at 12:11:20 PM EST

seated their man.


The Dems (none / 0) (#15)
by jbindc on Tue Mar 17, 2009 at 12:13:51 PM EST

The Dems painted themselves into a corner, if you remember. All the bally-hoo about how they couldn't seat Roland Burris because he didn't have a signed certificate from the Secretary of State, and then in this case, where Minnesota law does not allow a signed certificate to be issued until these proceedings are done.

My guess is - without the Burris drama, Franken would be in DC right now while these challenges go on.


Terrific (none / 0) (#16)
by Militarytracy on Tue Mar 17, 2009 at 12:16:04 PM EST

I've got a Burris and no Franken.


: And the Republicans who are fine with creating (none / 0) (#17)
by Militarytracy on Tue Mar 17, 2009 at 12:17:16 PM EST

history would have still seated their man.

People have no patience for this GOP election (5.00 / 4) (#6)
by Militarytracy on Tue Mar 17, 2009 at 11:40:59 AM EST

crybabyish, faux demostrators, media baiting crap anymore. I feel very safe saying that today. Make your stupid arguments you yahoos while the rest of country burns down around you.......talk about Nero egos from HELL. The most blatant example of a lack of judicial honesty that you have seen happened once and look what that did to us? If it happens again someone will probably end up lynched. Stick a fork in the people Norm cuz they are so done right now everyone is burnt, and your buddies did almost all of it to us. Go home and repent before it's too late to save what is left of your black heart and mangy soul.

My, my! (5.00 / 1) (#18)
by gyrfalcon on Tue Mar 17, 2009 at 12:17:40 PM EST

Yes, I feel better (5.00 / 3) (#19)
by Militarytracy on Tue Mar 17, 2009 at 12:25:14 PM EST

What say you? Rant of the day? (none / 0) (#32)
by oculus on Tue Mar 17, 2009 at 02:17:11 PM EST

At least (5.00 / 1) (#37)
by gyrfalcon on Tue Mar 17, 2009 at 04:37:32 PM EST

Probably of the month. MT may end up retiring the trophy at this rate.


: Certainly (none / 0) (#38)
by squeaky on Tue Mar 17, 2009 at 04:52:58 PM EST

MT is the most gifted writer who regularly comments here. Hands down, no contest.
Personally, I am waiting for the book.

IMO Supreme Court (5.00 / 1) (#25)
by BackFromOhio on Tue Mar 17, 2009 at 01:29:27 PM EST

unlikely to make same mistake twice, especially since everyone knows the Bush v. Gore decision was politically motivated, and we all know how well that turned out. Didn't Sandra Day O'Connor tell Jeff Toobin that she voted with Scalia because she did not realize how bad a president Bush would turn out to be?

And the Dem admin & in Congress, I hope, would not take a politically motivated decision lying down....


Wow (none / 0) (#40)
by lentinel on Tue Mar 17, 2009 at 06:20:24 PM EST

I had not heard that about O'Connor.
It makes me shudder that a Justice on the Supreme Court could render a decision based on anything but a serious opinion on the constitutionality of an issue.
Now I read that she voted with Scalia because she was a republican and liked Bush's parents...

I liked O'Connor.
I had no idea about this.


: Toobin talked about this on TV (none / 0) (#45)
by BackFromOhio on Tue Mar 17, 2009 at 08:25:34 PM EST

when interviewed about his book.

They created a monster (5.00 / 1) (#9)
by Steve M on Tue Mar 17, 2009 at 11:51:11 AM EST

Any serious reading of Bush v. Gore necessarily stands for the proposition that the federal courts are now required to enforce a uniform standard for statewide recounts in all 50 states. If one county official used a certain standard to ascertain voter intent and another official used a different standard, that's a federal violation requiring a federal remedy.

Of course, very few people take Bush v. Gore seriously (even those who liked the result) and it's positively insane to make the federal courts into election review tribunals for every federal election. But as long as the case is on the books, it's hard to blame people like Coleman for making the argument. Sooner or later, the Supreme Court is going to have to affirmatively acknowledge that Bush v. Gore was a one-shot deal.

By the way, from what I've read the state law which bars the issuance of a certificate of election to Franken may not apply any longer if the dispute moves into federal court. So he may get seated as soon as the state proceeding terminates.

But it doesn't really (none / 0) (#12)
by Big Tent Democrat on Tue Mar 17, 2009 at 12:01:27 PM EST

See for example Rossello v. Acedveo, 398 F.3d 1 (2004):

"Here, the final decision under Puerto Rico law to adjudicate all three-mark ballots under one consistent standard does not disenfranchise any Puerto Rico voters-indeed, it is the position espoused by the Rosselló Plaintiffs that stands to disenfranchise an estimated 28,000 voters. Thus, because the Rosselló Plaintiffs cannot claim that federal intervention is necessary because a discrete group of voters has been disenfranchised, and because they cannot allege any other harm sufficient to overcome the general rule of non-intervention,FN29 we conclude that it was an abuse of discretion for the District Court to intervene in this local election dispute.

FN29. We do not foreclose the possibility of a case in which federal intervention would be appropriate without a showing of disenfranchisement. The most obvious example of this would be a case involving vote dilution. See Bush v. Gore, 531 U.S. 98, 105, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) ( per curiam ) ("It must be remembered that `the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.' ") (quoting Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)).

Here, however, the Rosselló Plaintiffs' claim that the Commission's "change in the rules" after the election somehow "diluted" their vote for their political party of choice is without merit because there was no clear rule prior to the election that the three-mark split ballots were invalid.

The Rosselló Plaintiffs' claim that the three-mark split ballots were adjudicated inconsistently on election night (and immediately thereafter), on the other hand, presents a much stronger claim for federal intervention without a showing of disenfranchisement. That claim, however is rendered moot by the fact that all ballots will be adjudicated in the same uniform manner during the recount. See Bush v. Gore, 531 U.S. at 106, 121 S.Ct. 525 ( per curiam ) (addressing situation where "the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.").


Well (5.00 / 1) (#21)
by Steve M on Tue Mar 17, 2009 at 12:37:40 PM EST

This is what happens when you have a bad ruling - people try to find a way to distinguish it. But it's going to get brought up, again and again, until the Supreme Court does something to put that decision behind them.

Otherwise, it's going to end up like Ex Parte Quirin, a decision made 60 years ago under extraordinary circumstances, that suddenly people are seeking to resurrect for their own purposes since it was never expressly disavowed.


: During the Prop. 8 argument (none / 0) (#26)
by oculus on Tue Mar 17, 2009 at 01:29:30 PM EST

in the California Supreme Court, one of the justices remarked the lawyer from the AG's office, whose position was the proposition was an "amendment" as opposed to a "revision" of the CA Constitution, was relying on very old authority of the CA Supreme Court--like that was a bad thing.

Wall Street Journal weighs in (5.00 / 1) (#22)
by DFLer on Tue Mar 17, 2009 at 12:52:53 PM EST

WSJ
...

The current phase of the lawsuit over the close election is entering its final stretch, as both sides made their final arguments Friday. Most significant rulings during the seven-week trial have gone in favor of Democrat Al Franken. As a result, his 225-vote lead out of 2.9 million ballots counted has apparently expanded -- though there is no official tally -- and few independent analysts think Republican Norm Coleman is likely to prevail in his re-election bid.
But Republicans can claim a kind of strategic victory by blocking the Democratic former comedian's path to the Senate, which requires 60 votes to pass controversial items. Democrats there currently have 58.
snip
But if Mr. Coleman's fortunes in court don't improve, he may face pressure to withdraw. Polls suggest Minnesota voters are becoming impatient with the standoff, and Mr. Coleman may want to preserve his political standing to run for governor in 2010.

That last paragraph is about right re impatience. Actually the whole article is about right regarding that the GOPers efforts are simply about delaying the inevitable.

Description (5.00 / 1) (#39)
by lentinel on Tue Mar 17, 2009 at 06:14:05 PM EST

I have not read a single newspaper, when referring to Al Franken, that has not referenced him as "the former comedian".

They could just as easily refer to him as a former radio host, or best-selling author.

But those designations don't imply the correct level of contempt for them.


"the former comedian" (none / 0) (#42)
by DFLer on Tue Mar 17, 2009 at 07:06:03 PM EST

The real insult here is that that implies he's no longer funny.

[I thought I've seen him referred to as former radio host, but just now I couldn't find that reference]


It's not just CBS (none / 0) (#44)
by lentinel on Tue Mar 17, 2009 at 08:13:04 PM EST

really that it is gratuitous.

He's the democratic candidate for Senator from Minnesota. Period.


Well (none / 0) (#48)
by DFLer on Tue Mar 17, 2009 at 09:25:41 PM EST

Former actor Fred Thompson
Former actor Ronald Reagan
Fomer major league pitcher Jim Bunning
Former NFL quarterback Heath Shuler
Former NFL quarterback Jack Kemp
Former cheerleader George W. Bush

I guess it's inevitable when a politician has a public & successful pre-politics career.


You're right... (5.00 / 1) (#49)
by lentinel on Wed Mar 18, 2009 at 06:15:02 AM EST

of course,

but I still feel that the "former comedian" line is contemptuous rather than descriptive.

It's in the eye of the beholder, I guess.


: And so are you (right, that is) (none / 0) (#51)
by DFLer on Wed Mar 18, 2009 at 09:43:10 AM EST

I agree that using "comedian" is, as you say, contemptuous rather than descriptive.
in intent, anyway. I'm not sure that all voters find that to be a turn-off, having lost patience with regular politicians.
Using "comedian" only leaves out his career as writer, actor, radio guy.

With All Due Respect (none / 0) (#43)
by squeaky on Tue Mar 17, 2009 at 07:16:58 PM EST

He has had by far the most notoriety for being a comedian. It seems natural that he would be described as such. Obviously that framing has not hurt him as he is most likely going to be Senator of Minnesota.


From my understanding (none / 0) (#36)
by jbindc on Tue Mar 17, 2009 at 04:17:12 PM EST

The people of Minnesota are sick of BOTH candidates.


not those who voted for Franken (none / 0) (#41)
by DFLer on Tue Mar 17, 2009 at 06:59:17 PM EST

It's Coleman who's been dragging it on and on.


True (none / 0) (#50)
by jbindc on Wed Mar 18, 2009 at 07:54:02 AM EST

But a majority did not vote for either guy, so no matter how it ends up, more than 50% of the population might not be happy with the result. Not a good way to start a Senate term.


: Plurality versus Majority (none / 0) (#52)
by DFLer on Wed Mar 18, 2009 at 09:49:30 AM EST

Governor Pawlenty has not won a majority in either of his elections.
Dean Barkley ran a strong Sen. campaign (Independent party) As long as there are third party movements, pluralities will be more common.
There is a strong movement here to initiate instant run-off voting. Is that better than a second election, if neither candidate gets a majority? I don't know. Cheaper, certainly.

no way in hell (5.00 / 1) (#29)
by txpublicdefender on Tue Mar 17, 2009 at 02:02:01 PM EST

Aint no way in hell SCOTUS takes cert on this case.

Ultimately It's Up to the Senate (5.00 / 1) (#35)
by kaleidescope on Tue Mar 17, 2009 at 03:28:09 PM EST

And that's what the R's are really maneuvering about: Seeking a justification for enough party unity that they can sustain a filibuster. That would really be playing with constitutional fire and, provided Minnesota issues an election certificate to Franken -- by order of the MN Supreme Court -- I doubt the Senate Republicans would be able to keep people like Specter on board for a filibuster.

As for filing a petition in a federal district court, I suppose Coleman could sue claiming that Minnesota's election system as a whole violates his 14th Amendment right of equal protection. Anybody can sue anybody for anything, after all. I agree that a district court would likely dismiss that claim based on his already having raised it before the ECC. Coleman could then appeal that dismissal and petition for cert if he loses the appeal.

I think there's enough ambiguity that a court would be reluctant to impose Rule 11 sanctions?

And in any event, the process would've been extended and that is really the point.

What it will likely boil down to, though, is the MN Supreme Court rejecting Coleman's appeal, ordering Pawlenty and Ritchie to grant Franken a certificate, and then Coleman seeking an emergency stay from the Supreme Court. If that stay is denied, it will be all over.

Would they try and argue (none / 0) (#2)
by andgarden on Tue Mar 17, 2009 at 11:34:51 AM EST

inconsistent counting standards to the USSC? More important, would the Court grant cert?

Any suggestion that (none / 0) (#5)
by eric on Tue Mar 17, 2009 at 11:40:20 AM EST

the recount process did not have "uniform standards" is pretty ridiculous given the fact that there was an entire manual of standards published and distributed for the recount.

Minnesota has clear laws, rules and policies that control elections. This is not Florida in 2000 and it will not be a return to Bush v. Gore.

Well (none / 0) (#7)
by Big Tent Democrat on Tue Mar 17, 2009 at 11:45:26 AM EST

Your comment takes Bush v. Gore too seriously. It was a joke. There is no jurisprudence in it. It is raw judicial power.


Agreed (none / 0) (#10)
by eric on Tue Mar 17, 2009 at 11:52:32 AM EST

100%. Bush v. Gore was garbage.


Bush v. Gore was two decisions (none / 0) (#11)
by DaveOinSF on Tue Mar 17, 2009 at 11:57:29 AM EST

The decision the Coleman side will try to use as precedent was the 7-2 finding that the lack of consistent standards in the Florida recount violated equal protection. The 5-4 decision that nothing could be done about it will not come into play.


You go with that (none / 0) (#13)
by Big Tent Democrat on Tue Mar 17, 2009 at 12:03:15 PM EST

falsehood if you like.

The Bush v. Gore decision was 5-4. There is not an opinion that was agreed to by 7 justices.

If Coleman wants to make the dissents of Souter and Breyer the majority, more power to him. But it gets him nothing if you have actually read them


Really? Falsehood? (none / 0) (#24)
by bocajeff on Tue Mar 17, 2009 at 01:09:37 PM EST

Per Wikipedia - In a per curiam decision, by a 7-2 vote, the Court in Bush v. Gore held that the Florida Supreme Court's method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment. By a 5-4 vote, the Court held that no alternative method could be established within the time limits set by the State of Florida. Three of the concurring justices also asserted that the Florida Supreme Court had violated Article II, § 1, cl. 2 of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature.

Now, if Wikipedia is wrong then I stand corrected. Or am I missing something here? Please explain.


Don't know if I would cite Wiki (5.00 / 1) (#31)
by oculus on Tue Mar 17, 2009 at 02:16:24 PM EST

as a definitive source re legal matters on TalkLeft, the definitive sports/crime/politics blog.


: Surely you mean (5.00 / 2) (#33)
by Steve M on Tue Mar 17, 2009 at 02:19:56 PM EST

the definitive sports/crime/politics/reality TV blog!

Wikipedia is wrong (none / 0) (#27)
by eric on Tue Mar 17, 2009 at 01:35:12 PM EST

The wikipedia article says that "Seven justices (the five Justice majority plus Breyer and Souter) agreed that there was an Equal Protection Clause violation in using different standards of counting in different counties."

This is incorrect. With respect to Justice Breyer, he wrote:

"I agree that, in these very special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem. In light of the majority's disposition, I need not decide whether, or the extent to which, as a remedial matter, the Constitution would place limits upon the content of the uniform standard.

So, Breyer did NOT agree that there was an Equal Protection Clause violation.

Souter's dissent is a little less clear on the issue. He did suggest that he would remand the case with instructions to follow uniform standards for interpreting the ballots. But he did not "hold" that there was an equal protection violation.

In general, the whole discussion in the Wikipedia article, in my view, gives the decision way too much credit. In truth, it was pure garbage and not even really worthy of an attempt at scholarly analysis.


: thank you (none / 0) (#28)
by bocajeff on Tue Mar 17, 2009 at 01:48:00 PM EST

however, I see it as a bit more troubling than you in terms of uniform standars since Breyer did write "basic principles of fairness may well have counseled the adoption of a uniform standard".
It may take another 200 years, but this problem will creep in once again. A uniform system of voting along with a uniform recount system will alleviate many of the future problems.

: Was it Souter or Breyer who (none / 0) (#46)
by BackFromOhio on Tue Mar 17, 2009 at 08:32:07 PM EST

said he seriously contemplated resigning over the Bush v. Gore decision?

Wiki is quite wrong (none / 0) (#34)
by Big Tent Democrat on Tue Mar 17, 2009 at 02:35:58 PM EST

But beyond that, unless Bush v. Gore now means Souter's dissent, then this is all nonsense anyway.


I don't think you have much to worry about, BTD. (none / 0) (#23)
by elrapido on Tue Mar 17, 2009 at 01:09:08 PM EST

Remember the New Jersey Senate race in 2002? The NJ Supreme Court ignored the state's law and allowed Lautenberg to replace Torricelli on the ballot. Republicans sued, but SCOTUS didn't grant cert. Seems like you'd get the same outcome here (although the court's makeup is a bit different). The nature of the Presidency versus a Senate seat, I think.

The Constitution in Article I, Sect 5 (none / 0) (#47)
by Blue Jean on Tue Mar 17, 2009 at 08:35:27 PM EST

Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

In other words, the Senate can tell any court, up to and including the US SC, to go jump in the lake. If and when Coleman appeals, then the Supremes have a choice; they can pass on hearing the case and let the Minn SC's ruling prevail, or they can risk looking like partisan fools, and pretty weak-kneed partisan fools at that. I'm guessing they'll do the former.