MinnLawyer Blog

The Minnesota Supreme Court affirmed the trial court’s finding that Al Franken received the highest number of votes legally cast in the 2008 U.S. Senate election and that he is entitled to receive a certificate of election as a U.S. Senator from Minnesota under Minn. Stat. sec. 204C.40 (2008). (Click here for the full text.)

Norm Coleman had argued that his due process rights were violated because strict, rather than only substantial, compliance was the proper standard of compliance for the statutory requirements of absentee voting. Coleman maintained that ballots favoring him had been wrongly excluded because too high a standard had been used in some localities. The court rejected this assertion, finding that under its existing caselaw, strict compliance, not substantial compliance, was clearly the applicable standard. (In any event, the court found that there was no evidence that voters had relied upon a substantial compliance standard in casting their ballots and would have voted any differently. In fact, the court pointed out, Coleman’s counsel had conceded as much in oral argument.)

The court also rejected Coleman’s equal protection claim. Coleman had maintained that different policies for ensuring statutory compliance used in different areas violated equal protection. But the Minnesota high court found that local election officials are entitled to some discretion in implementing procedures to ensure compliance with statutory standards. Different localities have different resources, personnel and technology – and there is nothing per se wrong with adopting different policies to ensure compliance based on their individual capabilities and limitations, the court found. (Interestingly, the court found that the most famous equal-protection election case, Bush v. Gore, did not apply in this case.)

The high court next affirmed the rejection of Coleman’s attempt to introduce evidence that some absentee ballots had been wrongly opened and included even though the outside envelopes may not have complied with statutory requirements under a strict compliance standard. “The legislature has declared in section 204C.13, subd. 6, that once an absentee ballot has been deposited in the ballot box and commingled with other ballots, only challenges based on the face of the ballot itself – such as identifying marks or voting for too many candidates – can be raised,” the court said.

The high court affirmed the rejection of Coleman’s claim that it was error to deny his request to inspect ballots in certain precincts in which he alleged double-counting of ballots occurred. Such an inspection is only allowed upon a showing it is needed to prepare for an election contest. The court found that Coleman could have made his double-counting case by subpoenaing ballots, material and witnesses at the trial – something that he chose not do.

Finally, the high court concluded that the trial court did not err in ruling the election-day precinct returns for Minneapolis Ward 3, Precinct 1, were properly included in the tally of legally cast votes. Some ballots were missing, but Coleman introduced no evidence of foul play or misconduct, the court said.

Interestingly, the court stopped short of ordering Gov. Tim Pawlenty and Secretary of State Mark Ritchie to sign the election certificate. (Pawlenty has made clear he would sign the certificate if ordered to do so.) In the event Coleman chooses to pursue federal remedies, it is now unclear whether the governor will sign before the federal route is exhausted. All eyes are now turned to the Coleman camp to see whether he intends to keep this going, or is ready to throw in the towel. Stay tuned.

UPDATE: Coleman has conceded.