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July 01, 2009

Hollywood v. Coleman v. Franken v. Bush v. Gore

Entertainers Dan Akroyd, Richard Belzer and Edward Norton, among others, all got their money's worth in the Minnesota Supreme Court's decision Tuesday handing the state's Senate election to Saturday Night Live alum Al Franken.

Akroyd ($12,300), Belzer ($1,000) and Norton ($2,500) were among the Hollywood-ish types who pumped money into the Franken Recount Fund. The Fund raised $1.1 million since January, with other quasi-Name contributors including Barry Diller, John  Grisham, Tom Hanks, Norman Lear, John McEnroe, Michael Myers and the ever-lovin' comedic couple Jerry Stiller and Anne Meara.

The Coleman Recount Fund raised $949,000 since January. Its non-political star power was limited to the likes of Las Vegas mogul businessman Sheldon Adelson, who gave $10,000.

Coleman, a dogged soul, raised multiple arguments in his bid to challenge the election of Al Franken as Minnesota's newest senator. In its 32-page opinion issued Tuesday, the Minnesota Supreme Court knocked down each and every one.

A putative conservative -- isn't that someone who is supposed to be skeptical of discovering new constitutionally protected rights? -- Coleman nonetheless claimed that Minnesota's handling of absentee ballots violated "substantive due process." His reasoning: a trial court had determined that "strict" rather than "substantial" compliance with absentee ballot requirements would be the standard.

Wait. Suits & Sentences thought conservatives were supposed to believe in strict application of laws and standards. But here is Coleman, arguing his constitutionally protected rights were infringed upon when a court insisted on strict abiding by the rules. No matter. The Minnesota court noted:

Courts are reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended."

Coleman further summoned the Supreme Court's Bush v. Gore decision in arguing, separately, that his equal protection rights were violated in the handling of Minnesota ballots. Here, though the Minnesota court did not mention it, Suits & Sentences was reminded of the Supreme Court's enigmatic admonition in Bush v. Gore that:

"Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Which seemed to translate as: Don't try applying this precedent at home, kids.

Of course, there's no way the Bush v. Gore genie could be stuffed back in the bottle. Coleman invoked it as precedent, and the Minnesota courts handled it as such. Unfortunately for Coleman, the Minnesota Supreme Court also concluded that the specific facts in Minnesota could be distinguished from those in Florida that were at the heart of Bush v. Gore.

For cold comfort, Coleman and his good-government allies might lean upon the footnote in the Minnesota court's opinion that acknowledges:

"To the extent that this case has brought to light inconsistencies in the administration of absentee voting standards, we are confident that the appropriate officials in the other branches of government understand that efforts should be made to reduce those inconsistencies, even though they were not proven to be of constitutional magnitude."

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mike

"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.

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