The Minnesota Supreme Court decided in favor of Al Franken yesterday, declaring him the winner of the 2008 election for U.S. Senator in the State of Minnesota. One of Norm Coleman's arguments was that the counting of the absentee ballots violated his rights under the Equal Protection Clause under the case of Bush v. Gore (2000). Here is a link to the Minnesota Supreme Court's decision, and a description of this aspect of the decision follows.
At pages 20-22 of its opinion the Minnesota Supreme Court discusses Senator Coleman’s argument that the counting of the absentee ballots violated his rights under Bush v. Gore (2000). The Court distinguished Bush v. Gore for the following reasons:
First, in Florida the question was how individual ballots should be interpreted – remember the “hanging chads” and “pregnant chads”? In Minnesota the issue revolved around the acceptance or rejection of sealed absentee ballots. Election officials in Minnesota were not determining the subjective intent of the voter but rather whether the voter had complied with election law in filling out the absentee ballot envelope. Unlike the Florida election officials, Minnesota election officials had no way of knowing which candidate voters had cast their ballots for.
Second, in Florida there had been no uniform legal standards for determining the intent of the voter, whereas in Minnesota there were clear statutory standards for the acceptance or rejection of absentee ballots. While there were local variations in the procedures that Minnesota election officials used to review the validity of absentee ballots, there was no variation in the actual standards that were applied. The Minnesota Supreme Court ruled that local election officials may use different methods for complying with statutory standards – election procedures necessarily vary from locality to locality depending upon available resources, personnel, and technology.
I would note two other differences between Florida, 2000, and Minnesota, 2008. In Bush v. Gore the Supreme Court interpreted Florida law as establishing a time limit for the counting of ballots, and time ran out on December 12, 2000. In this case there was (as we all know) no time limit for the counting of ballots. Finally, and most importantly, in a Presidential election Congress is free to reject the returns from any state and if no candidate receives a majority of the votes from the Electoral College the election is thrown into the House of Representatives. If upon recount Florida had gone for Al Gore the Congress would not have accepted that result and the House, voting by states, would have installed George Bush as President anyway. Al Gore eventually saw the handwriting on the wall and conceded.
{ 2 comments… read them below or add one }
"If upon recount Florida had gone for Al Gore the Congress would not have accepted that result and the House, voting by states, would have installed George Bush as President anyway."
You're speculating here. Perhaps you're correct, we'll never know.
The Bush v Gore debacle relied on, as you say, "no uniform legal standards for determining the intent of the voter,"……at the same time, for example in Ohio, there's no uniform legal standard for voting. Does that mean that Ohio violates equal protection everytime there's an election?
Bush v Gore was the most dreadful example of judicial activism ever, and demonstrated beyond any reasonable doubt that the modern Supreme Court is simply a political entity.
I think you may be right about judicial activism, Rev. I presume you are referring to that exhibited by both side.
The interesting thing about Florida seems to have been that the Dems failed to request the one thing (a complete state-wide recount) that would probably have kept the U.S. SUprmes out of it and won it all for Gore.