Coleman’s quagmire, part 2

Senator Coleman’s case in the election contest has focused on local election officials’ inconsistent treatment of absentee ballots. Some counties rigorously enforced the statutory criteria applicable to absentee ballots; others did not. This past Friday, the election contest judges ruled that the statute provides the touchstone for determining the inclusion of previously rejected absentee ballots.

The ruling is reasonable on its face. Senator Coleman’s team has nevertheless attacked the decision as creating “a legal quagmire.” Yesterday the judges followed the logic of their ruling in rejecting the proffered testimony of (our friend) Professor King Banaian. Professor Banaian was to testify to the statistical evidence strongly suggesting disparate treatment of absentee ballots among the counties.

Not surprisingly, in light of its earlier ruling, the contest panel rejected Professor Banaian’s evidence. The judges held: “It is irrelevant whether there were irregularities between the counties in applying” the absentee ballot statute.

These rulings take the ground out from under the case Senator Coleman is presenting in the election contest. Rather than proving up absentee ballots that were erroneously rejected under Minnesota law, Senator Coleman seeks to have Minnesota law set aside for the sake of including illegally cast ballots. Jay Weiner quotes Senator Coleman’s lead trial lawyer asserting that this position is “at the heart” of Senator Coleman’s case.

It’s an odd position for Senator Coleman to be in. His lawyers take the high ground of the Constitution to support it. According to them, inclusion of rejected absentee ballots is mandated by the equal protection clause. The implication seems to be that the Constitution imposes a lowest common denominator in the name of equal treatment. If officials in one county disregarded a particular legal requirement applicable to absentee ballots, the requirement must be uniformly disregarded.

Senator Coleman’s team has identified a legitimate problem. It could and should be fixed so that it does not recur. I am not an expert on election law and I may well be wrong, but it has seemed unlikely to me that any court, state or federal, would require the inclusion of illegally cast ballots as a remedy to the problem. If illegally cast ballots that were counted on election day cannot be uncounted, Senator Coleman may have identified a wrong without a remedy.

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