/ March 25, 2009

No Verdict in the MN Senate Race – Professors Debate Merits of Potential Appeals

There’s no decision yet from the three judge panel.  And, as the entire state of Minnesota holds its breath, Coleman’s lawyers are getting ready for a potential appeal.  According to a report by Minnesota Public Radio, the back up argument here is equal protection.  This is an argument that Coleman’s attorneys expect to win. 

There were different rules in different counties.  Loyola University election law professor Rick Hasen reports that the argument would be that “you need to have the same rules in place across the entire state for dealing with similarly situated ballots.”  During the trial, Coleman’s lawyers argued that some counties checked absentee ballots to be sure that the witnesses were registered while others did not.

The judges would not consider certain ballots which had been thrown out.  Ohio State University election law professor Edward Foley says that Coleman could raise constitutional claims about each of the 19 separate categories of ballots that the judges rejected and refused to count.  However, this type of claim is a “wild card” because there isn’t much certainty in this type of law. 

Different bodies making different decisions does not necessarily create a constitutional problem.  “It is inevitable that the State Canvassing Board is going to call some questions differently than the court does, and that’s just the way the process works,” says Dan Lowenstein of UCLA.  Here, we are lacking an agency “whether that’s the State Canvassing Board or somebody else — who’s arbitrarily treating things differently, and saying we’re going to count ballots from one county and not count identical ones from another county.”

Source: Minnesota Public Radio

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