The Minnesota Trial: Strict Construction To The Left Of Me, Living Constitution To The Right?
A pretty funny dynamic has developed in the Minnesota court case, different from the way we're used to seeing judicial issues argued in this country: The left is arguing for a strict interpretation of the law, while the right is taking the side that the mere letter of the law fails to grasp the situation.
The court today heard arguments on whether the campaigns think particular categories of rejected absentee ballots should be counted -- that is, whether certain kinds of errors should be forgiven for one reason or another. As we saw earlier, the Coleman camp now has a very expansive view that nearly all the rejected ballots should be included, even if it goes against the letter of the law.
For example, Coleman lawyer James Langdon said that the Franken team "would have you sit in a vacuum, strictly interpreting a statute," without taking into account the facts that have come into the court and shown just how complicated this all is. He also said that the circumstances of this case were "creating penumbras" around the written law.
The Franken camp argued the opposite -- that Minnesota laws are very specific about what kinds of ballots are to be counted, and only ballots where the exclusion was 100% because of clerical error should be counted. "The contestants [Coleman] talk a lot about what they wish the law might be, but not what the law is," said lead Franken lawyer Marc Elias. "And the law is what it is, and has strict requirements that must be adhered to."
A Franken legal filing in this matter even has this line:
It is ironic that Contestant Coleman, who previously insisted on strict laws against voter fraud and strict construction of the laws generally, now finds it in his interest to ask for judicial activism...
Will the Federalist Society be holding a reception for Franken any time soon, or the American Constitution Society for Coleman?
Josh
Matt
Eric
Brian
It would seem the precedent of Bush v Gore really nails this one down. Under equal protection you can't have election officials in different counties shading the penumbrae differently. Either you'll need to go by the strict letter of the law or allow any piece of paper that purports to be an absentee ballot.
There may in fact be instances where it would be more "fair" (if less legal) to accept a ballot, that's a matter for the MN legislature to take up.
February 12, 2009 5:59 PM | Reply | Permalink
But even abiding by the strict letter of the law, you can have two election judges looking at the same pair of signatures and coming to different decisions on whether they match. The problem is, short of having one person review all 11,000 pairs of signatures, there is no way to be absolutely consistent given the limits of human abilities. Perhaps you could come up with a different system for future elections, but for this one there's no reasonable remedy. Equal protection cannot be construed as requiring perfection.
February 12, 2009 6:08 PM | Reply | Permalink
By the S.Ct's own ruling, Bush v. Gore has NO precedential value. (Unfortunately it was very presidential for Bush.)
February 12, 2009 7:06 PM | Reply | Permalink
If Coleman had such issues with Minnesota election law, why didn't he work to correct it as he saw fit while he was in office?
February 12, 2009 6:09 PM | Reply | Permalink
I think maybe he was too busy getting fitted for his free suits at Neiman Marcus.
February 12, 2009 6:13 PM | Reply | Permalink
"Sarah! How nice to run into you here!"
February 12, 2009 6:33 PM | Reply | Permalink
you betcha
February 12, 2009 10:59 PM | Reply | Permalink
Possibly because US Senators do not sit in the MN legislature?
February 12, 2009 7:32 PM | Reply | Permalink
But a senator is still in a position to work on election reform, and the mayor of the capital city is in a position to advocate. I think the main point however is that Republicans have always been against interpreting the law to protect voters. Until this contest, Republicans were steadfastly against counting wrongly rejected ballots, and even objected to hand counting anything the machines didn't pick up. I still see them advocating against recounts at all. From now on, I intend to use this sudden expansiveness against them when they try to restrict voting rights and express zero sympathy for someone screwed by an official's mistake. If you haven't watch a state senator express disdain for the notion that disenfranchising voters who have physical problems filling in ballots is bad: http://www.ravensblog.net/archives/january1-09.php
February 13, 2009 1:23 AM | Reply | Permalink
I meant to also mention that the Franken campaign's discovery of wrongful rejections in the first place was based on a strict interpretation of the law, so really they're being consistent in interpreting it strictly.
February 13, 2009 1:25 AM | Reply | Permalink
Thanks for the wry observation, Eric. Gotta say that I enjoy this turnabout. Of course if I was in Minnesota....
February 12, 2009 6:18 PM | Reply | Permalink
(repeat from other article)
A "genuine reason to believe" is an utterly absurd and unworkable legal test. It would require trying to determine, after the vote was cast, the intent of every voter who submitted an invalid ballot.
I recall hearing of a case, I believe by a federal appeals court or the SCOTUS, which threw out a pro se litigant's appeal because the litigant filed the appeal based on the wrong date given by the trial judge, which was beyond the deadline to file.
Intent is irrelevant to procedural requirements.
"Do or do not. There is no try" Jedi Master Yoda
February 12, 2009 7:08 PM | Reply | Permalink
I think that wanting a strict interpretation of a recently written statute is not inconsistent with believing that our 200 year old broadly written Constitution should be interpreted in light of modern mores and beliefs.
Otherwise, flogging would still be considered a suitable punishment for minor infractions in the military, and you could have election trials that go on for months.
February 12, 2009 7:31 PM | Reply | Permalink
The notion that conservative judges and attorneys are more inclined toward strict construction of the law than liberals is a conservative myth.
February 12, 2009 8:18 PM | Reply | Permalink
"Will the Federalist Society be holding a reception for Franken any time soon, or the American Constitution Society for Coleman?"
LOL!
http://tpmdc.talkingpointsmemo.com/2009/02/coleman-lawyer-the-constitution-now-requires-counting-invalid-votes.php#comment-3375414
is my point of view. I suggested in early December that Coleman's view was plausible (count ALL the ballots which are not outright frauds). But I think he must lose on that at this point.
February 12, 2009 8:52 PM | Reply | Permalink
The "letter of the law" is not a Consitutional interpretation. In Washington in 2004, as in Minnesota in 2008, the law was followed exactly as written. Once that's done, it's over, and the courts will ultimately agree with this inevitable conclusion.
February 13, 2009 10:03 AM | Reply | Permalink