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In Senate trial, Coleman turns to Bush v. Gore

ST. PAUL, Minn. ? The success of Norm Coleman's lawsuit to reclaim his Senate seat could depend on how willing the trial judges are to find a precedent in the U.S. Supreme Court ruling from another messy, political charged election battle: Bush v. Gore.

Republican Coleman's greatest hope to overtake Democrat Al Franken's 225-vote lead is his argument that about 11,000 rejected absentee ballots should be given another look by the three judges hearing the case. His lawyers argue that many were rejected while other ballots with similar mistakes were counted, that standards were applied differently from county to county in violation of the constitutional standard of equal protection.

"It's a long shot," said Jan Baran, a Washington election attorney and former general counsel to the Republican National Committee. "But it worked for Bush v. Gore."

The circumstances are different, but Coleman's effort strikes the same legal notes as the Supreme Court lawsuit that handed George W. Bush a victory in Florida and put him in the White House. In that case, Bush's lawyers got the Supreme Court to agree that Al Gore's push to recount ballots in four Florida counties would have resulted in inconsistent standards from one county to another for deciding whether the infamous hanging or dimpled chads should count as legal votes.

"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," the majority wrote in Bush v. Gore.

In the Minnesota trial, entering its second week on Monday, Coleman's lawyers have made similar arguments over and over.

"As part of this process, we have seen that different counties treated the same ballots differently so that voters whose votes counted in one county were rejected in another county," said Ben Ginsberg, a Coleman attorney who was a key member of Bush's Florida legal team in 2000. "In order to achieve equal protection under the law and enfranchise as many people as possible, we need to count all similarly situated ballots."

In his opening statement, Coleman's lead trial attorney Joe Friedberg argued that treating all absentee ballots the same is "the only way to avoid the Bush v. Gore problem."

The three judges hearing Coleman's suit haven't tipped their hand on whether they buy that argument.

There are four valid reasons under Minnesota state law for rejecting absentee ballots, and Franken's lawyers argue that the vast majority of the 11,000 uncounted absentee ballots were properly rejected for one of those reasons.

The four reasons are: The name and address on the ballot's envelope do not match a name and address on the voter rolls; the signature on the envelope doesn't match the voter's signature on file; the voter was not registered when he or she voted; or the voter also went on to vote on Election Day.

Franken's team argues that any mistakes by election officials in deciding whether to count absentees didn't rise to a level that resulted in the wrong candidate winning.

Franken's lawyers have filed motions trying to limit to less than 1,000 the number of absentee ballots that the judges should review.

The recount numbers have been certified by the state Canvassing Board. Franken's lawyers argue that to undo that, the judges would have to find there was an unacceptably high level of error throughout the election and recount process.

"Overturning the results of the recount would be a breathtaking exercise of judicial power," Franken attorney Kevin Hamilton said in his opening statement.

Daniel Lowenstein, a constitutional law professor at UCLA, said he sees little precedent for the trial judges deciding that Bush v. Gore compels them to personally review all 11,000 rejected absentee ballots.

"I think it's really a state law question," Lowenstein said. "It seems much more reasonable to me that Coleman should have to identify the specific ones where he has some plausible case for saying these ought to be counted, and limit it to that."

But Ned Foley, a professor of election law at Ohio State University, said that question has yet to truly be tested. Since the Bush v. Gore ruling, the Supreme Court has not cited the case again in any subsequent rulings, so legal scholars are split on whether it applies to state election disputes.

If it is going to apply to state elections, Foley said, then "the Coleman-Franken contest is the biggest Bush v. Gore case since the Bush v. Gore case itself, undoubtedly."

The judges are expected to issue rulings as early as this week that could give a better idea of which approach they'll favor. If Coleman loses his effort for a wide review and his lawsuit fails, his argument seems tailor-made for a federal court appeal.

And that could ultimately give the Supreme Court a chance to finally revisit its Bush v. Gore decision.

Of course, there's no guarantee they would take that chance.

"They get about 10,000 requests a year," said Baran, the Republican election lawyer. "And they take about 75."

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Re: In Senate trial, Coleman turns to Bush v. Gore

  • "As part of this process, we have seen that different counties treated the same ballots differently so that voters whose votes counted in one county were rejected in another county,"

    I do believe there should be a consistant set of standards applied to all ballots at least within a state. I don't know how difficult that would be.

  • Since the Bush v. Gore ruling, the Supreme Court has not cited the case again in any subsequent rulings, so legal scholars are split on whether it applies to state election disputes.

    Maybe some of the lawyers on this board can help me, but didn't the Bush vs Gore ruling itself say it is not setting precedent with the decision?  (And if so, can the Supreme Court do that - i.e., in a ruling prevent other later cases from using their decision as precedent?)

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