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Franken, Coleman, the Forest and the Trees

By Eric L. Lipman

While mindful of the very wide range of opinions that have already been expressed on the Minnesota Supreme Court's conclusion that Al Franken?s was elected U.S. Senator from Minnesota last fall (see, e.g., here and here), I thought that I would add a few comments of my own on Tuesday's landmark decision.

Perhaps it is the nature of those who are not involved in political campaigns to completely miss the forest for the proverbial trees, but I had a decidedly different take on the Court's decision and its significance -- different from most everyone around me. When the decision came down on Tuesday, I was not thinking about the 2008 election at all. I was thinking only of the elections that will come; the next landscape entirely.

So, quite apart from any consideration as to which candidate ended up with the election certificate (a matter that I am quite happy to leave to other commentators and other blogs), in my view, there was a good deal in the decision that Republicans, Democrats and Independents could cheer -- and cheer in unison.

No doubt imbued with the sense that everyone in the Western World would be watching the results of this case -- and nearly everyone was -- the Court?s opinion is crispy written; it clings closely to the questions and the record that were presented below; and it provides genuinely helpful answers to the matters that were in doubt. The fact that the Court drew together as a unified Per Curiam bloc when rendering the decision, only adds to the force and utility of its written work.

Similarly helpful, the Court made clear that not every difference in election practice among Minnesota?s 4,130 precincts amounts to a denial of equal protection of the law. As the Court explained:

The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.

Before Tuesday, that point was not altogether clear. To my mind, the Court?s qualifier narrows the number of likely nightmare scenarios following Bush v. Gore (and its oft-cited conclusion that the Equal Protection Clause guarantees individuals that their ballots will not be devalued by "later arbitrary and disparate treatment") to a fairly manageable number of Election Day anxiety attacks. So, election officials, you are free to put down your paper bags and begin breathing normally....

Lastly, the Court?s acquiescence to the lower court?s ruling that a post-election inspection of ballots does not extend to non-ballot materials, and its still stronger assertion that the ballots themselves may only be examined by litigants after a showing of necessity has been made, is sure to avoid some of the more mischievous kind of rummaging through election materials that candidates have enjoyed to date. Two snaps for that.

And so while the wrangling over who should sit at Desk Number 94 in the Senate Chamber will no doubt continue apace, and perhaps continue on longer than the election contest itself, I think only of the further horizon. And that looks pretty good.

The Court's complete analysis is accesssible here.

Full post as published by Within the Scope on July 04, 2009 (boomark / email).