Tuesday, April 14, 2009
The three judge court in Minnesota decisively rejected Norm Coleman's challenge to the election recount that found Al Franken the winner of the Senatorial election. It's ironic in many ways that Coleman's last hope of overturning the result is based on Bush v. Gore, the infamous 2000 Supreme Court decision that put George Bush in the White House. Even the justices of the Supreme Court will not defend the legal reasoning of that decision, and specifically stated in the opinion that it should not be read to apply beyond the facts of that particular situation. That case was itself filled with irony because it was based on a broad reading of the equal protection clause, that part of the 14th Amendment that liberals traditionally read expansively to overturn laws that infringe civil rights. In Bush v. Gore, it was the supposed strict constructionists who held that people's right to have their votes counted in the same manner and according to the same rules everywhere was being infringed by the Florida Supreme Court's order allowing the recount to continue. They would have been better off simply stating that they were just impatient with the Florida judicial process and wanted all these state court proceedings to come to an end.
So in addition to the irony of using a liberal reading of constitutional rights to reach a conservative result, there is the additional irony that it is now the Coleman forces who are dragging out the state court challenges to the recount process, whereas in 2000 the Republicans were screaming that the system could not stand a 30 day delay in figuring out who won the 2000 presidential election.
Coleman still has the option of appealing to the Minnesota Supreme Court, and then starting a federal court challenge, but the only reason for him to do that would be to delay the seating of an additional Democratic vote in the Senate. The Minnesota Supreme Court is highly unlikely to reverse, and the federal courts would be inviting an avalanche of voting rights cases if they were foolish enough to expand the scope of Bush v. Gore. Cooler heads should advise Coleman that the pursuit of this short term advantage in the Senate is unlikely to help Republicans in the long run. The next time there is a close, contested election, it could be a Democrat that will be citing the Coleman example as an excuse for dragging out an election challenge.