MinnLawyer Blog

U.S. Senator-elect Al Franken and his wife Franni shortly after their state Supreme Court victory yesterday. (Photo: Bill Klotz)

To paraphrase Gerald Ford’s famous quote about the Watergate saga, our long state nightmare has ended. I am not claiming there was anything untoward about the Franken/Coleman election dispute. It’s just that it was long. Dang long.

As a member of the media, I would like to personally thank the Minnesota Supreme Court for releasing us from the Sisyphean duty of trying to come up with new things to say about a situation that really hasn’t changed in six months. Same story, just the names of the panels hearing it were changing. It’s no wonder the spring and summer have not really seemed to come to Minnesota this year. Perhaps with this frozen Senatorial election at long last thawed, this winter of our discontent will melt into an actual summer. And just in time for the 4th!

So, let me one last time revist this never ending story to provide you one tiny bit of Wednesday morning quarterbacking.

In H.G. Wells’ work “The Time Machine,” a futuristic society is dominated by creatures called the Morlocks who live underground and come up occasionally, capture, kill and eat the humans (Eloi) who live on the surface in an otherwise Edenic existence.

It was also a Morlock that wound up killing the Coleman team’s chances to have the absentee ballot count reopened on due process grounds. I don’t mean one of the furry subterranean creatures of H.G. Wells fame, but a 1963 Minnesota Supreme Court decision, Fitzgerald vs. Morlock. (BTW, The first film version of “The Time Machine,” starring Rod Taylor, came out three years earlier in 1960.)

Rewatching the oral arguments with the benefit of 20/20 hindsight (ah, the magic of technology!), I could see that it was only a few minutes into Coleman attorney Joe Friedberg’s argument that Justice Paul Anderson invoked the name of the magical case that would ultimately put a stake through the heart of the due process claim.

As the Supreme Court put when it cited Fitzgerald vs. Morlock in its per curiam opinion issued yesterday, “We have said that any reasonable regulations as to the conduct of the voter himself’ are mandatory, and a vote is properly rejected if the voter fails to comply with the law.” (Emphasis added.)

Coleman’s due process claim was that Minnesota only required substantial compliance with the statutory requirements for an absentee ballot to be admitted. But the word mandatory is a clear indication that Minnesota is a strict compliance state. In other words, Morlock answered the very question Coleman’s team was raising — and answered it against Coleman. This was the point Anderson was bringing up at the oral argument. And, if there is anything a lawyer making an argument before the state Supreme Court doesn’t want to hear, it’s the court telling you that it ruled against your client on that issue 46 years ago! (The court also concluded in its opinion that a death knell to Coleman’s due process claim was rung out by Bell v. Gannaway, a 1975 state high court ruling reaffirming the mandatory nature of the absentee balloting requirements.)

Sure Coleman had his equal protection claim, but that never a likely path to victory. For one thing, standing in the middle of this path was the thicket of Bush v. Gore. Nobody wants to open that Pandora’s box – least of all the Minnesota Supreme Court if it didn’t have to. The court concluded (rightly I think) the case didn’t apply, so therefore was able to avoid looking too deeply under its hood.

I realize that everybody wants to get on with their lives, pack up the boat and start the 4th of July barbecue, so here I will end my pontificating. I think the way the state handled the election — from the five-member canvassing board, to the three-judge panel to the five Supreme Court justices who decided the appeal — conducted things in a manner that did our fine state credit. Coleman did the classy thing by conceding rather than soldiering on in a quixotic quest to the federal courts that would have done nothing but stretched things out longer. All-in-all a good ending to a long, but well-handled dispute.

Now its time to start thinking about the 2010 governor’s race …