Both the Franken and Coleman campaigns have made frequent references to the latest word out of the Supreme Court on election law, Bush v. Gore. It turns out that despite SCOTUS's statement that Bush v. Gore "is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," it has loomed over the Minnesota Senate Recount. Now that Coleman has filed his election contest, it has the potential to do more than loom.
Minnesota's law governing election contests was written in 1959, and Bush v. Gore was decided in 2000. After the break, I explain where I see a conflict...
Minnesota has a series of statutes that set out the jurisdiction and procedure for an election contest, which is essentially a civil suit. The laws allow for "discovery" in the form of an inspection of ballots—essentially a re-recount.
It appears as though in 1959, the original statute governing the inspection required that for statewide elections all ballots be inspected, and did not provide for a contestant to select individual precincts for inspection. In 1961, the statute was amended to allow candidates to select certain precincts for inspection. Either the contestant or the contestee may identify precincts for inspection.
Norm's attorney made a point of saying that their plan was not to reconduct the entire recount, even though that's an option. No, their plan is to pick certain precincts to recount. Simultaneously, though, they're making equal protection arguments on the basis of Bush v. Gore, arguing that you can't apply different rules to similarly-situated ballots.
If you only recanvass certain precincts, applying new rules to those recanvassed ballots, Bush v. Gore says you violate the constitution's guarantee of equal protection. ("Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.") Coleman has proposed new rules for the recanvassed ballots.
Thus, Minnesota's statute providing for piecemeal inspection of ballots for a statewide election may be unconstitutional. State law provides for a contest to reconsider only those precincts that the contestant and the contestee identify. But does that mean the statute providing for the contest invites the contestant and the contestee to cause an equal protection violation?
Bush v. Gore, depending on how it is read and applied, may therefore have serious implications for Minnesota's election contest statutes.
I wouldn't be surprised to see Franken argue that the statute permitting Coleman to pick a subset of precincts is unconstitutional, and that the court may not re-evaluate ballots under a new standard unless Coleman asks for a complete do-over.
That has the effect of forcing the issue, but putting the burden on Coleman to decide if he wants to go through with the Full Monty. If Bush v. Gore says what people seem to believe it says, it would violate the constitution for the court to implement the statute as it is written. So if the court comes to that conclusion, it may or may not choose to decide, sua sponte, to mandate the entire state be recounted, but it simply wouldn't have the authority to let the campaigns cherry pick.
This could get interesting, quickly, as this legal question would need to be decided very early in the proceeding.
As a final note, I add that appealing to Bush v. Gore does not contradict the Supreme Court's expression that it was "limited to the present circumstances," nor does it require a Bush v. Gore-style outcome (stop counting; whoever's ahead wins). The court's expression of the law governing Bush v. Gore is not unique to the case—it constitutes a persuasive, if not controlling, interpretation of constitutional requirements governing all elections.
In Bush v. Gore, SCOTUS concluded that "there is no recount procedure in place under the State Supreme Court’s order that comports with minimal constitutional standards" in time to choose presidential electors. But there is no deadline here. Both parties are well aware of the equal protection pitfalls, and are eager to help the state avoid them. And even if the state doesn't avoid stepping into a pitfall the remedy would be to send it back and tell the state to do it right, not to cut the process short and declare a winner.
Update: Don't forget to catch WineRev's Daily MN-Sen diary!