Ned Foley, Guy Charles, Rich Hasen

Ned Foley, Guy Charles, Rich Hasen

Three election-law experts who have been closely tracking the Norm Coleman-Al Franken contest for U.S. Senate weigh in today with written reactions to the final order (pdf) from the three-judge panel that heard Coleman’s complaint. All admired the order for its unanimity and deft handling of Coleman’s equal-protection claims.

The ruling meets two standards that Ohio State University professor Edward Foley had set for the panel: unanimity and a willingness to grapple with whether local variations in applying state election processes violated Minnesotans’ constitutional guarantee of equal protection under the law.

Foley stresses the impartiality of the ruling — as compared to, say, Bush v. Gore in 2000, on which Coleman’s claim of equal-protection violations relied:

There is no doubt … that this three-judge court would have rejected the same Equal Protection claim if raised by Franken rather than Coleman.

Loyola Law School professor Rich Hasen doesn’t use the word “impartial” but he does call the ruling “careful, unanimous,” “reasonable and conservative,” and  ”detailed and measured.”

On equal protection, Hasen writes that the three-judge panel “has it both ways” — calling the issue outside the court’s scope but also rejecting it with “impressive and sensitive handling”:

As I predicted, they rejected a reading of the case that would require the counting of further illegal votes to deal with any illegal votes that had already been cast, and they rejected an argument that any lack of perfection in the casting and counting of votes constitutes a violation of equal protection.

Coleman’s equal protection argument is “not trivial,” writes Guy Charles, a University of Minnesota law professor temporarily teaching at Duke University:

But as judges and legal academics like to say, that argument proves too much … Unfortunately for Coleman, his prospects always depended upon a miracle. He wanted before and wants now more ballots to be counted. But the more ballots that are counted — by election officials, the Canvassing Board and the trial court — the better Al Franken does.

“It’s over,” Charles advises Coleman on his post-election legal battle. “It’s Kumbayah time.”