Election expert Foley surprised at complexities in judging Coleman’s appeal

Ohio State University election law expert Edward B. Foley takes a long, hard look at Norm Coleman’s appeal to the Minnesota Supreme Court and finds the case to be more of a morass than he initially thought.

Foley’s approach is to figuratively don a robe, as a state Supreme Court justice might, and dig into one of the nine election-problem scenarios that Coleman’s brief raises about his contest with Al Franken to represent Minnesota in the U.S. Senate.

He discovers more complexity and uncertainty in applying state law than he expected to find, at one point deciding it all hinges on the meaning of the word “satisfied.”

These state law issues, regrettably, are not straightforward. Indeed, as I’ve mulled them over since Coleman filed his brief last Thursday, at times I’ve found them mind-numbingly complex, and I’m someone who specializes in election law and has followed this vote-counting dispute from the beginning (meaning since Election Day, last November 4).

It’s Foley’s field — he’s a professor and election-law director at Ohio State’s Moritz College of Law — so you’d think he would enjoy a chance to romp in it.

But Foley doesn’t sound so happy, perhaps because, as he told the Minnesota Independent in late February, he has been rooting for a Coleman-Franken resolution that would rank among the best-settled disputed elections in American history.

He expressed hope then that a well-written, unanimous ruling from the election-contest trial court, even if appealed to the state’s high court, might leave winners and losers alike satisfied that fairness had prevailed and justice had been served.

The trial court did issue a unanimous ruling. But now Foley sounds less confident that the appeal can be handled with dispatch. Here is the conclusion to Foley’s 5,000-word (and 35-question-mark) essay:

What should one make of all this uncertainty over the state-law issues in this appeal? I’ve only considered the first of the nine scenarios identified by Coleman, and it seems more than complicated enough. Perhaps the issues will seem clearer after Franken’s brief and Coleman’s reply. But I’m not betting that complete clarity will reign in time for oral argument. And, of course, there are still the federal constitutional questions, even after all the state law issues are resolved (as well as other, non-Bell, issues of procedural bar, which might preclude reaching some of these issues on the merits).

One begins to wonder if practical considerations should overtake rigorous legal analysis in the minds of the Minnesota Supreme Court justices. According to opinion polls, the public is clamoring for this disputed election to be resolved. A remand to the trial court might spark a public outcry.

I, for one, didn’t think there needed to be an appeal in the first place. As I’ve written elsewhere, the demands of democratic legitimacy can be satisfied by a fair trial before a well-structured panel, as this three-judge court was. In the context of a major statewide election, where the need for closure is especially pressing, democratic legitimacy does not demand “de novo” review of the relevant legal questions by a second multi-member judicial panel, however fair it also might be in its consideration of the very same questions.

Still, Minnesota law undeniably permitted this appeal. Because it did, the Minnesota Supreme Court should adjudicate the appeal according to law, not politics. Therefore, as difficult and complicated as both the state and federal law issues in the appeal may be, the court’s justices must grapple with those issues as best they can using the impartial methods of judicial inquiry. The justices must follow the law wherever it leads them, even if that place is an uncomfortable one politically.