Perspectives: Election recalls close encounters here

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Correction: This article has been revised to correctly identify and describe the 1991 U.S. Supreme Court case Cohen v. Cowles.

“This means something. This is important.”

Richard Dreyfuss (as “Roy Neary”), Close Encounters of the Third Kind (1977)

Last week’s congressional certification of the Electoral College presidential tally — interrupted for several hours Wednesday by a mob attack on the U.S. Capitol — brought to an end the momentous election of 2020.

As its embers subside, the nation awaits the inauguration on Wednesday, Jan. 20, of the new president, Joe Biden. But the public will not soon forget the extremely narrow margins that propelled him to victory in a handful of key states.

Those close results in about a half-dozen battleground states recall some of the ballot brouhahas encountered in Minnesota in recent memory. Three stand out: two post-ballot recounts in elections by margins even closer than the narrowest ones in the recent presidential race, as well as a last-minute pre-election battle over who appears on the ballot, along with another election-related brouhaha that reached the U.S. Supreme Court.

Franken fracas

The most well-known matter is the 2008 Senate election in which DFL challenger Al Franken narrowly unseated Republication incumbent Norm Coleman following a contentious recount.

Although Coleman led by 206 votes on the first ballot count, Franken achieved a 225 vote lead after a hand recount, which led to a grueling seven-week trial before a special panel that included Minnesota Supreme Court Chief Justice Eric Magnuson, and two other jurists. The proceeding gave Franken a 312-vote edge, which the Minnesota Supreme Court, upheld in a unanimous per curiam decision in Coleman v. Franken, 767 N.W.2d 453 (Minn. 2009).

The case elicited the evocative remark from Justice Paul Anderson in oral argument before the Supreme Court, bemoaning comparison to the 2000 Bush v. Gore recount: “This is not Florida,” he sternly lectured Coleman’s counsel. As the challenger to the result, Coleman was unable to sustain his burden of proof to show that the certification of Franken’s election “was in error.” In fact, the bar was set higher,” obligating that Coleman demonstrates that results are “clearly erroneous.” The Court upheld the recount result, reasoning that the special tribunal’s outcome was correct and that Coleman’s challenge had disclaimed any contention of fraud before the Supreme Court. It also rejected a constitutional claim of violation of due process, although Coleman continued years later to insist there was “credible” evidence of fraud. Some supporters of his, including Gov. Tim Pawlenty, professed agreement.

Franken, for his part, won reelection in 2014 by a more substantial margin, but, as everyone recalls, had to step aside at the end of 2017 in the early throes of the #metoo movement, replaced by Gov. Mark Dayton’s choice, Lt. Gov. Tina Smith, who then won a special election in 2018 and triumphed again this fall for a full six-year term.

Rolvaag’s recount

An even closer recount in 1962, a 91-vote margin out of 1.2 million ballots cast, gave DFL challenger Karl Rolvaag, then the lieutenant governor in the days when the top two offices did not run on a single ticket, a victory over the one-term GOP incumbent, Elmer Andersen.

The Supreme Court got into the act, again, upholding over two dissents the disputed results from various contested counties in In re Application of Andersen, 264 Minn. 257, 119 N.W.2d 1 (1962). It refused to overturn the voting counts in 10 counties because to do so would be “declare the loser to have won the election.”

Rolvaag went on to become the first governor in Minnesota to serve a four year term, but he lost his party’s nomination in 1966 to his lieutenant governor, A.M. (Sandy) Keith, who died this fall shortly before the election.

Rolvaag prevailed in an intra-party primary election, running on the “Let The People Decide” slogan, alongside his running mate, businessman Robert Short. However, in the general election, the people decisively decided for the Republican challenger, Harold LeVander, a South St. Paul attorney, who himself only served a single term, before declining to run again in 1970.

Ballot brouhaha

The years between the Rolvaag and Franken recount rulings witnessed a ballot brouhaha decided by a divided Supreme Court in a suit titled Clark v. Growe, 461 N.W.2d 385 (Minn. 1990), which upheld a decision by the DFL Secretary of State Joan Growe disallowing a Republican candidate for lieutenant governor to stay on the ballot after her running mate, the GOP-endorsed candidate, businessman Jon Grunseth, dropped out late in the camp gain due to multiple sex scandals. The court’s ruling that the DFL secretary of state “did not err” in removing the orphaned GOP running mate with a replacement GOP ticket, led by incumbent state auditor, Arne Carlson, given the exclusive Republican line on the ballot.

Chief Justice Peter Popovich, one of a pair of dissenters, criticized the GOP for being “disrespectful of the role of the judiciary and [creating] a misuse of the judicial process” in the ballot brouhaha.

Notwithstanding the criticism, Carlson and his chosen lieutenant governor, added to the ballot shortly before the election, went on to win. In an upset, Carlson prevailed, gaining 50% of the vote to incumbent Rudy Perpich’s 47%, a 60,000 ballot margin.

The majority opinion in the case was joined by Keith, whom Perpich had appointed to the state Supreme Court a year earlier, and subsequently was appointed as Chief Justice upon Popovich’s retirement. Perpich later expressed disappointment over Keith’s role in the court ruling, which Perpich blamed for his defeat in the ensuing election.

Confidentiality loser

Perpich was involved indirectly in a prior election-related proceeding that became a landmark case before the U.S. Supreme Court in a suit titled Cohen v. Cowles, 501 U.S. 663 (1991). It arose during the waning days of the 1982 election where a Republican legislator, Dan Cohen, revealed to the press a pair of minor legal offenses years earlier by lieutenant governor candidate Marlene Johnson — upon agreement by a pair of reporters from two Minnesota daily newspapers that he would remain anonymous. The accounts were published, but he editors chose to use his name despite the promise of confidentiality.

Unmasking him precipitated a lawsuit by the outed source that spanned nearly a decade, though a $70,000 jury verdict in Hennepin County, a pair of appeals through the state court, and a ruling in 1991 by the U.S. Supreme Court, which in a 5-4 ruling upheld the validity of the lawsuit over first Amendment objections by the two newspapers and a hoard of their supporters. The majority of justices held that the freedom of press provisions of the First Amendment “does not” immunize the media from suit for breach of contract. The case was sent back to the Minnesota Supreme Court, which granted a reduced award of $200,000 based upon estoppel bringing the decade-long litigation odyssey to a conclusion. 479 N.W.2d 387 (1992).

The case led to a splurge of copycat lawsuits over the years. Some more notorious than others, partially validating the view at the time of the late and sorely missed University of Minnesota media law scholar, Donald Gillmor, that the decision in the case would “determine the course of media law for the foreseeable future.” The eminent U of M journalism school professor’s prediction may have been a bit hyperbolic, but the case did boost the publishing industry, spawning a pair of insightful books by two of the participants, Cohen’s titled “At War Against the Media: a True Story” and one by his victorious attorney, Elliot Rothenberg “The Taming of The Press.”

Unlike his relatively narrow defeat in 1990, Perpich trounced his 1982 GOP opponent, Wheelock Whitney, by some 336,000 votes, a solid 18% margin.

This trio of Minnesota Supreme Court cases reflects that close encounters of the election kind have not been alien to this state.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.