Day: March 27, 2009

        Eric Black at MinnPost (hat tip, Rick Hasen’s Election Law Blog) suggests that the three-judge panel hearing the Coleman/Franken election contest might, after resolving the question of which candidate received the greater number of lawful votes, file a separate report with the Senate on Coleman’s contention regarding the use of different standards for counting votes in different Minnesota counties.  (The essence of Coleman’s argument, as I understand it, is that the Minnesota counties that are not involved in the election contest counted certain votes which should not have counted under the standards set forth by the three-judge panel and, because these votes are no longer identifiable, it is impossible to say who received more votes under a uniform standard throughout the state.) 

            Black bases his suggestion on the text of Minnesota Election Statute 209.12, which provides:

           

    When a contest relates to the office of senator or a member of the house of representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election. The judge trying the proceedings shall make findings of fact and conclusions of law upon that question. Evidence on any other points specified in the notice of contest, including but not limited to the question of the right of any person to nomination or office on the ground of deliberate, serious, and material violation of the provisions of the Minnesota Election Law, must be taken and preserved by the judge trying the contest, or by some person appointed by the judge for that purpose; but the judge shall make no findings or conclusion on those points.

After the time for appeal has expired, or in case of an appeal, after the final judicial determination of the contest, upon application of either party to the contest, the court administrator of the district court shall promptly certify and forward the files and records of the proceedings, with all the evidence taken, to the presiding officer of the Senate or the House of Representatives of the United States.

(emphasis added). 

            The statute thus provides that the sole function of the Minnesota courts is to determine “which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election.”  The statute clearly contemplates that there will be other points on which evidence must be taken and preserved and that, following the conclusion of the case, the entire record, including but not limited to evidence relating to points which the court was not permitted to resolve, shall be transmitted to the Senate.

            In making its ruling, therefore, the court will have to resolve the question of whether Coleman’s argument falls within the category of issues that it is permitted to address in the first place.  The answer to this question is by no means obvious, at least based on the face of the statute.  One could make a plausible argument that this issue goes directly to the determination that the court is supposed to make, ie, who received the most lawful votes, and therefore is one that the court may resolve.  On the other hand, one could make an equally plausible argument that this is one of the other points that the court is supposed to leave to the Senate to answer because the statute does not contemplate a judicial determination that no one is entitled to the certificate of election. 

            Assuming that the court decides to award the certificate of election to Franken, I agree with Black’s intuition that the manner in which it treats Coleman’s argument could be quite important to the course of future Senate proceedings.  At one extreme, the court might consider Coleman’s argument on the merits and make findings of fact against him (eg, that even if the other counties had counted in accordance with the proper standard, Franken would still have received more votes).  At the other extreme, the court might find that it was without power to consider Coleman’s argument, but urge the Senate to do so. 

            I do not, however, see anything in the Minnesota statute that would authorize the courts to make a separate report to the Senate.  The only thing that the statute says should be transmitted to the Senate (assuming that one party so requests) is the evidentiary record.  Any views that the courts (either the trial court or the Minnesota Supreme Court) wish the Senate to consider will have to be included in their opinions resolving the case before them.