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UPDATE: Coleman concedes; no Bush v. Gore violation found

UPDATE 4:08 p.m.  Republican Norm Coleman on Tuesday afternoon ended his fight for reelection to the U.S. Senate, bowing to a decision of the Minnesota Supreme Court that his opponent, Democrat Al Franken, had won the most votes and was entitled to enter the Senate.  “The [state] Supreme Court has made its decision and I will abide by the results,” Coleman told reporters in St. Paul, the Associated Press reported. That, of course, eliminates any chance of a U.S. Supreme Court test on the constitutional issues Coleman had raised.


The Minnesota Supreme Court, ruling unanimously that Democrat Al Franken got the most votes and is entitled to be the state’s next U.S. Senator, turned aside a claim by Republican rival Norm Coleman that the Supreme Court’s decision in Bush v. Gore was violated in the way absentee votes were counted or rejected.  Whether that ruling will be tested before the Justices depends now on whether Coleman, who had held the seat, gives up the prolonged fight over the election conducted almost eight months ago.

The state Court’s 32-page ruling can be found here. (Thanks to Rick Hasen  on his election law blog for the usual promptness in posting a link to the opinion.)

Coleman and his supporters had challenged Franken’s 312-vote margin (out of more than 2.4 million total cast) on five specific points.  Three of those involved issues under state law, and would normally not be open to challenge in the federal courts, including the Supreme Court.  But two were claims under the U.S. Constitution and could be reviewed in the federal courts: the claim that Coleman’s right to an equal counting procedure in jurisdictions across the state — a right based on Bush v. Gore — had been violated, and a separate claim that his right to “substantive due process” had been violated by officials’ failure to count ten categories of absentee ballots by insisting that voters strictly comply with absentee voting rules.  The state supreme court rejected both of those challenges.

 On the Bush v. Gore challenge, Coleman had contended that his right to equality was violated by differing approaches by election officials to counting absentee ballots, and that a state trial court violated that right by its ruling on accepting absentee ballots.

Rejecting both, the state’s highest court said that “equal protection is not violated every time public officials apply facially neutral state laws differently.  The United States Supreme Court has held that ‘an erroneous or mistaken performance of a statutory duty, although a violationh of the statute, is not without more a denial of the equal protection of the laws” (relying on the Justices’ rulng in 1944 in Snowden v . Hughes).

For Coleman to win on this point, the state justices said, he “was required to prove either that local jurisdictions’ differences in application or the trial court’s application of the requirements for absentee voting was the product of intentional discrimination.  Coleman neither claims nor produced any evidence [of that].”

The state justices said they agreed with the trial court in this case that Bush v. Gore could be distinguished “in several important respects.”   It said one of those was that the Supreme Court had said it was not ruling on local government entities’ authority to adopt different ways of carrying out elections.

Another difference, the opinion said, is that Bush v. Gore dealt with a situation in which there were no established standards under state law for determining voter intent.  In the Minnesota election, it added, there were clear statutory standards for accepting or rejecting absentee ballots.  Moreover, it said, the Supreme Court was wrestling with the problem of voter intent — for whom did the voter mean to cast his or her vote — but in Minnesota the issue was what to do with absentee ballots before they were ever opened and examined.

The Court did say in a footnote, though, that it was not suggesting that differences in application of state election standards “are inconsequential and need not be addressed.”  This legal contest, it added, may have brought about “inconsistencies” in handling absentee ballots, so “appropriate officials” can be expected to make efforts to reduce those “even though they were not proven to be of constitutional magnitude.”

In turning aside Coleman’s due process complaint, the state Court said he in essence was asking for a new “substantive due process” right not to have a change in election standards.  It said that, to prove a due process violation in an election context, it was necessary to show that voters had probably relied on an existing procedure and thus a change in procedure would result in “significant disfranchisement of the voters.”

There was, in fact, no change in the standard here — that is, the duty of voters to comply strictly with absentee voting requirements, the state justices concluded, so Coleman could not prevail on this part of his challenge.

In concluding its unsigned (“Per Curiam”) ruling, the State court said Franken was entitled under state law to receiver the certificate of election as U.S. Senator.  It did not specifically order the governor to issue that certificate, however.  Its ruling is not to become final for ten days. That ten-day lag is to allow a petition for rehearing to be filed.