If Norm Coleman Makes a Federal Case of It, What Will Happen?

By Richard L. Hasen, the William H. Hannon Distinguished Professor of Law at Loyola Law School, Los Angeles, and author of the Election Law Blog.

Following an order issued earlier in the week by the three-judge court hearing the election contest in the Coleman-Franken dispute, most observers believe that Norm Coleman will lose his election contest before that court. Coleman has already promised an appeal to the Minnesota Supreme Court. If he loses there, it may be off to the United States Supreme Court and then possibly even to federal district court in a new lawsuit. In this post, I explore what is likely to happen in the federal courts if Coleman continues to litigate the outcome of the Minnesota U.S. Senate race beyond the state Supreme Court.

Cert. petition to the United States Supreme Court.

If Coleman loses in the Minnesota Supreme Court, he would be entitled to file a petition for writ of certiorari in the United States Supreme Court. It would be completely discretionary whether or not the U.S. Supreme Court would hear the case, and barring (likely) motions to expedite consideration of the case, it could take months before the Court would decide whether or not to hear the case and, if it decided to hear the case, to issue an opinion. (Bush v. Gore, of course, went from cert. petition to a final decision in under a week, so anything is possible in terms of timing.)

Reason to File Cert. Petition Regardless of the Merits. Some have speculated that one purpose of continuing appeal on the Republican side is to delay the seating of Franken in the Senate. Franken’s seating would bring Democrats to 59 (counting independents who lean Democratic, Sens. Lieberman and Sanders), very close to a filibuster proof majority. Sen. Cornyn, chair of the NRSC, said that appeals could take “years.”

The initial question is whether the Minnesota Supreme Court, if it rules in Franken’s favor, will order the issuance of an election certificate to Franken before any cert. petition is ruled upon. That court recently ruled that no certificate may issue until the “state courts have finally decided the election contest.” Elsewhere in that opinion, the court stated that the certificate cannot issue “until an election contest is completed.” So the question is whether a petition to the U.S. Supreme Court is part of that “state contest” process so as to delay the issuance of the certificate. Absent clear guidance from the state supreme court, the state’s Republican governor, Tim Pawlenty, may refuse to sign an election certificate.

The Merits of Potential Arguments in a Cert. Petition. How would a cert. petition brought by Coleman fare before the Supreme Court? This is a difficult question to answer until we see the lower court opinions. But it is clear that a major (perhaps the only) federal question to be raised in the cert. petition is whether the recount process denied Coleman his equal protection rights. I have written in detail about this argument in Slate, and I conclude that on the merits the equal protection argument is very unlikely to succeed. Beyond equal protection arguments, if Coleman can point to any decisions of the Minnesota courts that seem to deviate from the Minnesota legislative scheme, he can argue that the Minnesota courts have usurped the power of state legislatures to set the rules in Senate elections in violation of Article I, section IV of the Constitution. This too appears to be a tough claim to make.

Separate, New Suit in Federal District Court.

Coleman’s side has been making a fair bit of noise recently about pursuing a separate claim in federal district court. This doesn’t seem like it is part of the “state contest” process, so the filing of the lawsuit should not prevent the state from issuing a certificate for Franken (though Republicans in the Senate could point to a new suit as a reason to further delay Franken’s seating in the Senate).

Equal Protection. If the case goes forward, it is hard to see viable federal issues. One possibility is raising the same equal protection arguments already discussed. Given the possibility of raising those in state courts and in a cert. petition to the U.S. Supreme Court, it looks like there would be a problem with Coleman raising an identical issue already litigated in a different forum. (Perhaps Coleman himself would not be a plaintiff, and it would be Minnesota Coleman voters who technically would bring the case, raising some interesting standing and other issues.) On the merits, the equal protection argument looks no stronger in federal court than in state court.

Due Process. There is one other possible claim, and it too is a long shot. On very rare occasions, federal courts have intervened in state election contests on constitutional due process grounds when a federal court has viewed the state supreme court changing the election rules in midstream. The leading case in this area is an Eleventh Circuit case, Roe v. Alabama. A state court had ordered certain absentee ballots to be counted in a close race for state Chief Justice. These ballots did not comply with a state law requiring notarization of the ballot envelope or two signatures. The case bounced between the state courts (where Democratic judges decided in favor of counting of those ballots that could have benefited the Democratic candidate for Chief Justice) and the federal courts (where Republican-appointed judges decided against the counting of those ballots). It was quite ugly. The state courts relied upon a long-standing canon of construction in the state, the Democracy Canon, reading state election statutes liberally to favor enfranchisement of voters. The federal courts ignored this jurisprudence, and found that the practice of the state in almost every election county was not to count such absentee ballots. Counting the ballots now, the Roe court concluded, violated due process.

It is hard to see a Roe-like argument for Coleman in this case. So far, at least, the three-judge court has hewed close to the statutory scheme and existing Minnesota precedent. Indeed, the court has gone out of its way in three opinions to say that it was following existing state Supreme Court precedent in not applying the Democracy Canon to liberally construe absentee voter statutes. It turns out that Minnesota is in the distinct minority of jurisdictions treating absentee voting as a privilege and not a right. As I’ve explained elsewhere, this is something the Minnesota courts should eventually change; statutes should be construed to favor voters’ enfranchisement, whether they are in-person voters or absentee voters. But to adopt the Democracy Canon for absentee voters in the course of the close, partisan election contest to count more absentee ballots for Coleman ironically would give Franken a good, Roe-like due process argument to raise in federal courts.

In short, due process is violated when state courts change existing election rules mid-stream. There is no indication that in the Coleman-Franken dispute the Minnesota courts will change their long-standing, chary interpretation of absentee ballot statutes.