Equal protection violation requires intent

I always thought Norm Coleman’s best shot at invalidating the State Canvassing Board ruling declaring Al Franken the winner was a violation of the Constitution’s equal protection clause.

Applied to the Franken-Coleman case, that meant that absentee ballots had to counted — or not counted — exactly the same in each vote-tabulating jurisdiction.Coleman, of course, argued that counties had counted absentee ballots differently.To be more precise, Coleman contended that some counties (GOP-leaning ones) threw out absentee ballots that the Iron Range and urban areas (DFL turf) did not.

Apparently there never was a legally valid equal protection argument — a huge surprise to Coleman and other lawyers who argued or closely followed the equal protection aspect of the case.

Let’s see if I can distill this down for the non-lawyers out there (which means I’m leaving out the case citations, all of which can be found in the opinion, here).

First, mere fraud or mistake will not render an election invalid.Second, and most important when it comes to the absentee ballots, the crucial distinction is that absentee voting is a privilege, not a right.[Voting, of course, is a right.]

What does that mean? As a privilege — granted by the Minnesota Legislature and not the Constitution — absentee balloting is governed by statute.Meaning:The Legislature decides how absentee balloting is conducted.

This the Legislature did.And the counties and other jurisdictions executed the absentee balloting to the best of their abilities, given the rules in statute.Vote-counters may have made mistakes, but they didn’t do it on purpose.

There was no evidence of intentional different treatment of the same kinds of absentee ballots.

And thus, no valid equal protection argument.

That’s the the other big news (besides declaring Franken the winner) in the Minnesota Supreme Court opinion.And, that’s what has to be fixed when the Legislature reconvenes next February.

Finally, don’t forget that Hubbard Broadcasting has submitted Minnesota Data Practices requests for all the absentee ballots. Months hence, we’ll finally know who would have won if all the vote-counting jurisdictions had, indeed, counted the ballots the same.

The Minnesota Supremes may have decided 5-0 for Franken, but they decided on the law and the evidence before them, as they had to as an appellate court.

They never got to the heart and soul of what equal protection is about — if applied to all the ballots that were cast in the 2008 election.

No Responses to “Equal protection violation requires intent”

1. Anonymous Says:
   July 1st, 2009 at 11:29 am

   The ONLY people who ever hung their hat on the ridiculous assertion there had been fraud in this election, are the shameless frauds who peddle hate for a living, by trying to heighten public emotions over claims like Coleman’s. As a non-aligned independent, I was all for him pursuing the judicial appeal to the recount. Any politician (including Franken) in his place would have, and should have. But to claim after it is all said and done that 8 independent judges who made unanimous decisions are somehow missing the plot, beggars belief. As does everything Sarah Janacek says, because she is the worst of the bunch among MN’s shameless frauds. OK, her and David Strom might be tied.

2. Anonymous Says:
   July 1st, 2009 at 12:33 pm

   vile is the word for them

3. Anonymous Says:
   July 1st, 2009 at 12:33 pm

   vile is the word for them

4. Anonymous Says:
   July 1st, 2009 at 1:04 pm

   You are you are an independent. How ridiculous. You message is identical to the dfl message. There was fraud in the election. Ballots were counted statewide in many different ways. Some precincts had more votes tallied than voters signed in. Many of the dfl heavy counties accepted almost any absentee ballot as Ok regardless of the rules. This is documented. The old democratic idea that all votes should be included whether done by law or not. Many of the conservative counties just followed the law. What a ridiculous principle in your eyes. In my county I saw several absentee ballots without signatures in the right place. They didn’t count. They were from people I know voted Republican. This is the truth. The dfl can denial forever but the truth will set you free so the dfl will be burdened forever with this atrocity.

5. Anonymous Says:
   July 1st, 2009 at 1:53 pm

   The argument about fraud is made by many but I have yet to see an example or even proof that counties did not count absentee ballots the same. Instead of democrat leaning or republican leaning tell me how Hubbard County counted absentee ballots different than St. Louis County.

   I asked that question 3 months ago and have yet to get an answer.

   Nothing which you have stated is remotely true or based on facts at hand. Which county had the most percent of absentee ballots not counted St. Louis and Olmsted. Those are real facts easily attainable.

6. Anonymous Says:
   July 2nd, 2009 at 6:48 am

   Three thngs:

   1. I’m still bewildered, incredulous really, that in 2009, in a state in the United States, it has taken 8 MONTHS to determine the winner of an election. WE have a problem that needs to be fixed. I’m embarassed that it has taken 8 months to resolve this matter; I’m enmbarssed that these were the best representaives the respective parties could put on the ballot.

   2. Fraud, maybe. Politics is a contact sport and right now the DFL is taking it to the honorable, but naive opposition. The way I see it the DFL understood the game and the legal system much better than the republicans. And they used it to their advantage and won. The final analysis may show the actions of the DFL were unethical, or immoral, but apprently not illegal.

   3. Additionally, and after action review of Coleman’s canadicy and campaign is a must, he lost for a reason and the republicans need to understand why. To the DFL, you won this time, rest assured, many of us out here are learning, and will not be stilled. We have been off the field too long, we are coming back and you’ll soon know it.

   RCC