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Analysis: Minnesota Supreme Court ignores Bush vs. Gore in deciding for Franken

This article first appeared in the St. Louis Beacon, June 30, 2009 - Bush vs. Gore reared its head in Coleman vs. Franken, but the Minnesota Supreme Court didn't pay it much heed in rejecting Norm Coleman's challenge to Al Franken's election to the U.S. Senate.

Coleman must not have thought the U.S. Supreme Court would want to revisit the case either. Coleman conceded the election Tuesday afternoon, shortly after the 5-0 decision was announced.

One of the five challenges that the Minnesota Supreme Court rejected was Coleman's claim that he was denied the equal protection of the law because different standards were used at different polling places in counting the absentee votes. Coleman said that election officials in different parts of the state implemented the state requirements for absentee votes in different ways. And he said that once the courts got involved, absentee ballots rules were followed more strictly than they had been for absentee ballots counted by local election officials.

The state high court said that Coleman couldn't win on this claim unless he proved that election officials intentionally discriminated against him in the way they counted and recounted the ballots. Coleman could not make that claim.

Bush vs. Gore had not required George W. Bush to prove discriminatory intent when he challenged the different standards used in different parts of Florida in the 2000 recount. But the Minnesota Supreme Court said the situation was different.

Florida had no statutory procedure for determining the intent of the voter. Different counties were using different yardsticks. But in Minnesota, a state law set out a specific test for determining if absentee ballots should be counted. Moreover, the Minnesota officials were making their determinations before opening the ballots, while the Florida officials could see how the votes were cast when they were making their decisions.

For these reasons, the court concluded, Bush vs. Gore did not apply to the Minnesota recount.

Coleman could have appealed this federal constitutional issue to the U.S. Supreme Court, or he could have gone into federal district court. But Coleman announced that he would respect the unanimous decision of the Minnesota Supreme Court.

Legal experts have called Bush vs. Gore a decision that was good for only one day. Minnesota didn't change that.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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