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Resurrecting Bush v. Gore

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To the extent Democrats think about Bush v. Gore these days, they remember it as the worst Supreme Court decision in decades -- a nakedly partisan ruling by five conservative justices hell-bent on installing George W. Bush in the White House. Bush v. Gore was all this and more, but it also recognized, for the first time, a powerful progressive principle: that all voters in a state, and all ballots they cast, should be treated equally whenever elections are held. It was precisely because Florida's recount procedures varied dramatically by county, and thus did not treat all voters and ballots equally, that the Court ruled for Bush and ordered a halt to the vote-counting.

In the eight-plus years since Bush v. Gore was decided, its equal-treatment principle has largely failed to take root, either in practice or as a legal precedent. Disparities in the number and operation of polling places, the types of voting machines used, and the treatment of provisional and absentee ballots have continued unabated. (These disparities are particularly pronounced between rich and poor communities and in swing states like Ohio.) Lower courts have shied away from directing states to adopt uniform election administration rules, even in a California case where it was undeniable that some voters would have to use inferior punch-card machines. And not a single Supreme Court opinion has even cited Bush v. Gore -- let alone applied it in an effort to redress some electoral inequity.

Enter Norm Coleman. In the ongoing litigation over the whisker-thin loss of his U.S. Senate seat to Al Franken, he has wagered everything on a Bush v. Gore-style claim of unequal treatment. Specifically, Coleman argues that Minnesota counties improperly used different standards in deciding whether to accept absentee ballots, and that the trial court then wrongly enforced a stricter standard than the "substantial compliance" approach used by most counties. Coleman now asks the Minnesota Supreme Court to apply a single, relatively lax standard to all previously rejected absentee ballots, which would result in many of those ballots being counted.

As the trial court ruled (and as Franken argues), there are several problems with Coleman's position. Unlike in Bush v. Gore, Minnesota law is actually quite clear as to when absentee ballots should be accepted. Election officials across the state were trained under the same comprehensive program. The variations from county to county were relatively minor and linked to differences in resources. There was no evidence of intentional discrimination against Coleman voters. And the relatively lax standard now advocated by Coleman is in tension with Minnesota law.

But while Coleman's odds of prevailing may be low, progressives have good reason to cheer him on. First, if the Minnesota Supreme Court were to rule in his favor, it would mark the highest-profile victory of an unequal-treatment claim since Bush v. Gore itself. Such a victory would confirm that Bush v. Gore was not a one-ride-only ticket, good for George W. Bush and no one else. Concern that the decision was so limited -- fueled by the U.S. Supreme Court's infamous declaration that its "consideration is limited to the present circumstances" -- was one of the main reasons Bush v. Gore seemed partisan and arbitrary to many observers. For other courts to cite and apply the decision is the best way for it to become integrated into the rule of law.

Second, a judicial victory for Coleman would be a short-term setback but a longer-term win for both Democrats and the country. American elections are radically decentralized, with each state making its own rules and typically devolving a great deal of authority to counties and even towns. This system gives rise to endless complexity and confusion, while also tending to disadvantage Democrats. After all, it is poor, minority, and elderly communities (all of which lean Democratic) that typically have the oldest and least reliable voting machines, the longest lines, and the worst-trained election officials. A ruling for Coleman would have no immediate impact on these pervasive disparities, given the relative narrowness of the legal issue being decided. But it would likely make other courts more receptive to Bush v. Gore-style challenges, and fearing judicial scrutiny, state legislatures might be motivated to enact fairer and more uniform election administration policies on their own.

Third, the circumstances of the Coleman-Franken litigation make intervention by the U.S. Supreme Court very improbable. Franken would be unlikely to turn to the federal courts if the Minnesota Supreme Court rules against him, preferring to take his chances as previously rejected absentee ballots are counted. Even if he did eventually appeal to the U.S. Supreme Court, it would almost certainly decline to hear the case. The Court has shown no interest in revisiting Bush v. Gore (let alone expanding its holding), and it would want neither to ratify Franken's election nor to expose itself to fresh charges of partisanship by ruling for Coleman.

Best of all for Democrats, Franken's lead would probably go up, not down, if more absentee ballots were counted. Thanks to then-Senator Obama's unprecedented get-out-the-vote efforts, the absentee vote in 2008 heavily favored Democrats. When the trial court ordered 952 previously rejected absentee ballots to be counted, Franken won them by almost twenty points, adding 176 votes to his lead over Coleman. So if even more ballots were counted, pursuant to Coleman's laxer standard for determining validity, Franken's lead would likely swell even further.

The Franken-Coleman litigation therefore gives Democrats an opportunity to have their cake and eat it too. A victory for Coleman would entrench the equal-treatment principle that the Supreme Court opportunistically adopted in Bush v. Gore, while striking a blow for fairer and more consistent election practices. The Court would also be unlikely to intervene, and, at the end of the day, it would still be Al Franken taking office as the Democratic Party's sixtieth Senator.

(This column was originally published in Dissent Magazine.)

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