How Fair Can Be Faster: The Lessons of Coleman v. Franken

A. Adjustment of the congressionally specified dates ¹⁶

Currently, federal statutes specify the following dates between Election Day in early November and Inauguration Day on January 20:

• “Safe Harbor” Day ¹⁷ (exactly 5 weeks after Election Day)

These dates are antiquated and could be revised to give states a couple of extra weeks to fairly resolve disputes over the counting of presidential ballots, without detriment to the goal of resolving these disputes in time to inaugurate the rightful winner of the election. There are three components to making this revision.

B. A single 7-week period for both recount and recanvass

As the dispute between Coleman and Franken demonstrated, a recount does not necessarily include a recanvassing of ballots. Minnesota's administrative recount of its 2008 U.S. Senate election was limited to a review, by human hands and eyes, of those ballots that had already been scanned by electronic machines. The purpose of this administrative recount was solely to discern the voter's intent on each recounted ballot.

The scope of the administrative recount proceedings did not encompass issues concerning whether particular ballots were eligible for counting in the first place. It did not address whether ballots that had been rejected during the initial canvass, and thus never were counted in the first place, were wrongly rejected and thus should have been counted instead. Conversely, it did not address whether some ballots that had been accepted and counted during the initial canvass should, instead, have been rejected.

According to Minnesota law, these issues of ballot eligibility were recanvassing, not recounting, issues and thus were required to be addressed separately in a subsequent judicial proceeding after completion of the administrative recount. ²⁸ Minnesota law called this judicial proceeding a “contest” because it was a lawsuit filed in court to contest the results of the administrative recount. ²⁹ The only partial exception to the requirement that recanvassing issues concerning ballot eligibility be deferred to a separate judicial contest, rather than folded into the administrative recount, occurred when the Minnesota Supreme Court ruled (in its controversial 3-2 decision of December 18) that the administrative recount could include any previously rejected ballots that both candidates, as well as the relevant local election officials, all agreed had been mistakenly rejected in the initial canvass. ³⁰ But this partial exception was, in a significant sense, not an exception at all because the institution responsible for the recount (the State Canvassing Board) still had no authority under Minnesota law to make its own ballot-eligibility determinations. This institution, in other words, could not add ballots to the recount on the ground that it found, based on evidence presented to it, that some ballots rejected in the initial canvass should have been accepted and counted in the first place. Nor could this institution rule that some of the ballots initially accepted and counted should instead have been rejected. Thus, the essential point remains that the Coleman-Franken recount was confined to the ascertainment of voter intent, with issues concerning ballot eligibility to be determined by separate recanvassing proceedings—either the ad hoc administrative recanvassing ordered by the Minnesota Supreme Court, which required the consent of both candidates for a ballot to be counted, or subsequent recanvassing by a court in a judicial contest to the result of the recount.

The upshot of Minnesota law in this respect, however, is that the state was unable to complete all of its separate recanvassing proceedings by the same date that it certified the result of its recount, on January 5. ³¹ It took the separate, and subsequent, judicial contest to determine that 351 additional ballots had been wrongly rejected in the initial canvass and thus were still entitled to be counted. ³² It likewise was necessary for the same judicial contest to consider, and ultimately dismiss, Coleman's claim that there were thousands of ballots that had been counted initially but which should have been rejected as ineligible. The trial court in the judicial contest did not make the first of these two ballot-eligibility determinations (finding the need to count additional votes) until March 31, ³³ and it did not make the second (dismissing the claim of ineligible ballots tainting the recount) until April 13. ³⁴ The Minnesota Supreme Court affirmed both of these ballot-eligibility determinations on June 30, bringing the disputed election to a close. ³⁵

The main lesson of Minnesota's experience with the Coleman-Franken dispute, as well as Washington's similar dispute over its 2004 gubernatorial election, is that states must develop a set of procedures that enable them to resolve all recanvassing issues concerning ballot eligibility, as well as complete all recounting of ballots aimed at discerning voter intent, by early January. It is not enough that states complete their administrative recounts within this timeframe, leaving unsettled ballot-eligibility issues to drag on for months in additional judicial proceedings.

This point is certainly true with respect to presidential elections, for the reasons already discussed above. But it also applies to the U.S. Senate and gubernatorial elections that were the subjects of the disputes in Minnesota and Washington. Indeed, it applies to any election in which the winner is expected to take office in January. A state's procedures for resolving disputed elections should enable the winner of a U.S. Senate election to be seated in January, along with the other Senators, and not months later. Likewise, it would be far preferable if a governor, inaugurated in January, did not have the cloud of additional judicial proceedings that might remove her from office some months down the road. Therefore, if it is possible to design a fair process for resolving a disputed presidential election by January 5, as this article will show that it is, then this same fair process would also be appropriate for resolving disputes over elections for U.S. Senator, governor, or other statewide offices.

To understand how it is possible for a state to complete both a recount and a recanvass within the same seven-week period, one begins with this recognition about the procedures Minnesota used for the Coleman-Franken dispute: both the administrative recount and the trial of the judicial contest occurred within seven weeks. They just did not occur at the same time. The administrative recount occurred between the close of the initial two-week canvass, on November 18, and certification of the recount's result, on January 5 (a period one day shy of a full seven weeks). The trial of the judicial contest started on Monday, January 23 and ended, after seven weeks of testimony and argument, on Friday, March 13. ³⁶ Thus, if there were a way to move the trial of the judicial contest so that it occurred at the same time as the administrative recount, it becomes realistic to think that it would be feasible to finish the recanvassing of ballot-eligibility issues by the same January 5 deadline for certifying the recount of all previously counted ballots.

To be sure, there was more to the judicial contest than just the seven-week trial, even putting aside the appeal of the trial court's rulings. Before the trial started, there were three weeks from the filing of the complaint on January 6, during which the parties conducted discovery and filed pre-trial motions. Moreover, after the trial ended on March 13, it took the three-judge trial court exactly a month, until April 13, to release its final decision.

Even so, it is not difficult to see how the time for recanvassing ballot-eligibility issues could be curtailed to fit within seven weeks. At the front end of the recanvassing process, it is important to remember that, by definition, it is a review of the initial canvass itself. Therefore, the two weeks of the initial canvass is an appropriate period for the candidates to discover issues that they might wish to raise in the recanvassing process. When the morning after Election Day reveals the two leading candidates in a major statewide election to be separated by no more than a few hundred votes, the attorneys for each candidate immediately will begin their investigation of potential ballot-eligibility issues that they might wish to raise in any available recanvassing proceeding. The Coleman-Franken story certainly shows this. While well-designed recanvassing procedures might permit the candidates to conduct some additional evidentiary “discovery” with respect to ballot-eligibility issues after the completion of the initial canvass, during the early phase of the recanvassing process, the “discovery” of these issues will already be well underway since the morning after Election Day. It would not be unfair to the candidates to expect them to limit their additional evidentiary “discovery” during the recanvassing period, confining themselves largely to ballot-eligibility issues that emerged during the two-week canvass itself. After all, as a review of the initial canvass, the recanvass does not concern new issues, but instead only those already addressed in some way in the initial canvass.

At the back end of the recanvassing process, it is not unreasonable to expect the tribunal that adjudicates these ballot-eligibility issues to render its final judgment more expeditiously than did the three-judge panel in Coleman v. Franken. Particularly in the context of a disputed presidential election, when it would be absolutely imperative for this tribunal to conclude its proceedings in time for the meeting of the presidential electors on January 5 (according to the congressionally specified calendar proposed in section A, above), the tribunal should be able to issue its final judgment within no more than a few days after the close of whatever trial-type evidentiary sessions it conducts on the ballot-eligibility issues. Courts have repeatedly shown themselves capable of issuing decisions quickly in election cases when exigencies require them to do so. Bush v. Gore is the most obvious example, whatever one thinks of the merits of that decision. Indeed, even the three-judge panel in Coleman v. Franken could act quickly when necessary: it issued its decisive standard-setting opinion of February 13 only one day after holding an oral argument on what standard it should set. ³⁷

Thus, with relatively modest adjustments to the timetable for the judicial contest that occurred in Coleman v. Franken, it would be possible to compress the entire litigation of the ballot-eligibility issues into the seven-week time span that the actual trial of that judicial contest consumed. Doing so would require using a few days at the front end for additional “discovery,” as well as shaving a few days from the back end to leave time for the tribunal to release a final opinion. But in the course of a seven-week proceeding, modest adjustments of this nature are hardly infeasible.

Still, it remains necessary to consider exactly how a seven-week proceeding for recanvassing ballot eligibility issues could occur at the same time as the seven-week proceeding devoted to recounting ballots in order to verify voter intent. Would the two proceedings take place on entirely separate but parallel tracks, only to converge at the very end, just in time to comply with the January 5 deadline for the meeting of the presidential electors? Or would the recanvassing and recounting be integrated somehow into some overall unified proceeding?

These questions, in turn, raise another: why have two separate institutions conduct the recanvass and the recount? Would it not be more efficient, especially in the inevitably short amount of time available to meet the deadline for presidential elections, to have a single institution conduct both the recanvass and the recount? But if there is to be only one institution for both proceedings, should an administrative body (like the State Canvassing Board in Minnesota) be authorized to conduct the recanvass as well as the recount? Or, instead, should a judicial tribunal (like the three-judge panel in Coleman v. Franken) be authorized to conduct the recount as well as the recanvass?

To analyze the various factors relevant to designing an optimal seven-week process for completing both the recanvass and the recount, it is easier to start with the institutional questions: one institution or two; administrative or judicial tribunal? After considering these questions, one can then explore whether the recount and the recanvass should overlap entirely for the full seven-week period or, instead, whether there should be some effort to at least partially sequence the two inquiries (so that both do not begin and end at exactly the same time within this seven-week period).

C. An unmovable 2-week deadline to complete the initial canvass

The ability to complete both a recount and recanvass of ballots cast for presidential electors, in order to meet an unalterable early-January deadline for these electors to cast their Electoral College votes, requires in turn that the initial canvass be complete by two weeks after Election Day. In an exceptionally close presidential election, where on the morning after Election Day a single “swing state” will determine the Electoral College winner and the margin in that state is under 1,000 (or perhaps even 10,000) votes, there will be incredible pressure to extend the deadline for certifying the result of the initial canvass. The candidate who is just a bit behind in the unofficial tallies reported in the press on the morning after Election Day, and throughout the initial canvass as late or amended returns trickle in, will attempt to pursue every legal avenue potentially available to delay the certification of the initial canvass, so that the opposing candidate does not get the benefit of being the presumptive winner from this first official certification of the election's results.

We know this truth from the 2000 presidential election in Florida, where Gore successfully convinced the Florida Supreme Court to alter the certification deadline under that state's laws. We know it also from the 2008 U.S. Senate election in Minnesota, where Franken—because he was behind at the time—argued that the initial canvass was incomplete without resolving whether absentee ballots had been wrongly rejected. ⁴³ The State Canvassing Board, however, properly refused to delay the start of the automatic recount, ruling instead that the initial canvass was timely finished within its two-week deadline and its totals showed a result within the specified margin for triggering an automatic recount. ⁴⁴

Moreover, for the many states which now rely heavily on provisional ballots, the challenge of completing the initial canvass within two weeks after Election Day is especially daunting in a close election that triggers an immediate fight over the counting of those provisional ballots. In 2008, for example, completing the initial canvass of a congressional election in Ohio was delayed until December 5 because of litigation over the counting of provisional ballots. ⁴⁵ Under Ohio law, an automatic recount of that congressional election could not begin until the initial canvass, including the counting of all eligible provisional ballots, was complete. ⁴⁶ As it turned out, when the dispute over the provisional ballots was finally resolved on December 5, the result put the race barely outside the margin for an automatic recount. But if Ohio had been required to start an automatic recount of this race on December 6, the state would have been well behind in the process and unlikely to be able to conclusively resolve the election by early January.

For comparison, Minnesota had finished the local phase of its Coleman-Franken recount on December 5, the same day that Ohio was just learning whether it would need a recount in is congressional election. Minnesota had started its Coleman-Franken recount on November 19, the day after ending its initial canvass. Thus, Minnesota was over two weeks ahead of Ohio in its schedule for being able to complete an automatic recount. In a presidential election, the inability of Ohio to start an automatic recount until December 5, because of litigation over provisional ballots that delayed completion of the initial canvass, would prove devastating to the state's ability to complete the recount in time to meet its Electoral College deadlines.

Nor was the litigation in Ohio over provisional ballots in 2008 an isolated event, unlikely to be repeated. On the contrary, in 2010, Ohio again faced litigation over provisional ballots that seriously delayed the resolution of local elections. ⁴⁷ Indeed, one of these races, for a seat on a juvenile court, still remains unresolved as of August 2011, because the litigation over provisional ballots that are potentially outcome-determinative in that race is still pending in court. ⁴⁸

Thus, it is imperative, especially for states with provisional ballots, to develop procedures whereby they can successfully bring their initial canvass to a close within two weeks after Election Day. This deadline must remain firm, even with respect to disputes over provisional ballots, notwithstanding the inevitable pressures that will arise to extend this deadline. But for a state to succeed in making this deadline unmovable, the state's laws must establish a well-working relationship between the initial canvass and the subsequent recanvass. Tribunals will tolerate adhering to a rigid deadline for the initial canvass only if they readily understand how pressing issues over ballot eligibility that arise during the initial canvass can be properly handled in the subsequent recanvass without prejudice to either side in the dispute. Therefore, it is necessary to explore the appropriate relationship between the canvass and the recanvass. Doing so first requires a discussion of the tasks that must be undertaken in the initial canvass. Then, one can analyze how the proper handling of these tasks in the initial canvass can set the stage for an appropriate transfer of unresolved issues to the recanvass, while still insisting that the initial canvass close at the end of its allotted two-week period.

D. No appeal after a fair recount and recanvass process

The nine-week schedule that I have described—two weeks for the initial canvass, followed by seven weeks for the SERT's unified recount and recanvass—leaves no time for any appeal of the SERT's final determination of the vote totals in a disputed statewide election. As we have seen, in a presidential election, the last day for the SERT to certify which slate of presidential electors won more ballots cast by citizens on Election Day is the very same day that these presidential electors themselves must meet to cast their official votes for president, which is the constitutionally mandated deadline for any proceedings under state law concerning a dispute over the ballots cast for presidential elections. Therefore, under this schedule, there is no room whatsoever for any appellate or other form of judicial review of the SERT's certification.

This feature of the schedule, however, should be no cause for concern as long as the SERT is structured to be balanced and impartial towards both candidates, in the way that I have described. A crucial lesson of Coleman v. Franken is that it is unnecessary to have appellate review when the primary tribunal's proceedings satisfy the standard of fairness that is appropriate for adjudicating disputes over counting ballots. The appeal to the Minnesota Supreme Court in Coleman v. Franken itself did not add to the essential fairness of the proceedings in that litigation, given the inherent balance and impartiality in the composition of the three-judge trial court. On the contrary, what the appeal added was two-and-one-half months of delay. This extra expenditure of time was not only wasteful. It was inappropriate for an electoral dispute that must be settled as quickly as fairness permits. Thus, because by statute the SERT should be guaranteed to be as inherently balanced and impartial in its composition as was the three-judge trial court in Coleman v. Franken, there should be no right to appeal the SERT's rulings.

To fully appreciate this point, consider the possible outcomes in an appeal from an electoral tribunal that, by design, is structured so that its composition is as fair to both sides of the electoral dispute as is humanly feasible. One possibility, which is what occurred in Coleman v. Franken, is that the appellate tribunal will simply affirm the result already reached by the maximally fair first tribunal. This redundancy is a luxury that the process for resolving a disputed statewide election, especially a presidential election, simply cannot afford. ⁵⁹

The second possibility is that the appellate tribunal will reach the opposite result of the maximally fair first tribunal, precisely because the appellate tribunal is less fair in its composition, and thus the appellate result—unlike the original result—reflects a bias or tilt towards one side of the dispute. (If the SERT is structured as described, one can easily imagine that many existing state supreme courts, given the partisan methods by which their members obtain their seats, with no guarantee of overall partisan balance in their composition, would be less well-suited to resolve an electoral dispute than the appropriately designed SERT.) This appellate divergence from the maximally fair tribunal's original decision is obviously not desirable, at least not from the perspective of fairness.

The third possibility is that both the original and appellate tribunals are equally well-designed to be balanced and impartial towards both sides in the electoral dispute, and yet despite this equivalence they reach opposite results. One tribunal, in adjudicating the vote-counting dispute, rules in favor of one candidate. The other tribunal, adjudicating the very same vote-counting dispute on appeal, rules in favor of the other candidate. From the perspective of fairness, there is no way to prefer one result over the other. Indeed, more profoundly, in this circumstance there is no way for anyone to declare that one result was correct and the other one not. Obviously, this dispute was of a nature that equally fair tribunals could disagree about the correctness of the outcome. Everyone else may have an opinion about which outcome was correct, but no individual is in a position to claim that his or her vantage point is superior to the position of the maximally fair tribunal that reached the opposite conclusion. The most that anyone could say in this circumstance was that his or her own opinion agreed with one of the two tribunals but not the other.

In a dispute over the counting of ballots in a statewide election—especially a presidential election, where time is of the utmost essence—there is absolutely no advantage to having two divergent conclusions from two equally fair tribunals. To be sure, one side always would have preferred the opposite outcome if there is no appeal from the decision of a maximally fair tribunal. But in an election one side always must lose. By definition, there can be no fairer outcome than one reached by a maximally fair tribunal. Therefore, from the perspective of fairness, there is no point trying to seek a different outcome in an appeal from a determination of electoral victory reached in the first instance by a maximally fair tribunal.

Accordingly, there should be no right to appeal the decision of an appropriately designed SERT. For the same reason, there should be no ability of a candidate to move the vote-counting dispute to a separate state-court proceeding, whether denominated a “judicial contest” of the election or otherwise. In short, a state's statutes, or constitution, should provide explicitly that the SERT's jurisdiction over the vote-counting dispute is exclusive. During the seven weeks in which it conducts the recount and recanvass, the SERT should have full authority under state law to adjudicate any factual or legal issue relevant to the counting of ballots in the disputed statewide election. Thus, there is no reason for any other body to have authority under state law to assert any jurisdiction over the vote-counting dispute while it is pending before the SERT, and once the seven weeks of the SERT's jurisdiction has passed, there is no more time for any judicial body to undertake any additional adjudication of this same vote-counting dispute.

To some readers, it may seem anomalous to deprive a state's conventional supreme court of any authority to review a legal ruling rendered by the SERT. One must remember, however, that historically the judiciary (including the state's supreme court) had no role to play in the adjudication of vote-counting disputes in elections for state offices. Instead, the power to adjudicate such disputes resided in the legislature. ⁶⁰ This was true even for gubernatorial, and not just legislative, elections, as the dispute over New York's 1792 gubernatorial election clearly demonstrates. ⁶¹

It is true, moreover, even though it was well understood historically that the resolution of such vote-counting disputes would require the adjudication of legal questions of the type that normally would be decided by a court of law. The lawyers for both sides in the 1792 dispute, for example, submitted briefs to the legislative canvassing committee, making the kinds of arguments on propositions of law that they would have submitted to a court of law if jurisdiction over the dispute lay with the judiciary rather than the legislature. In this respect, the litigation of electoral disputes was historically equivalent to the impeachment and removal of officers. The Founders of our Republic well understood that impeachment and removal of officers would involve the adjudication of legal questions having the character that ordinarily would be decided by courts of law. Nonetheless, their adjudication would occur in special proceedings within the legislature, over which the state supreme court would have no power of review.

In essence, then, my recommendation of a SERT with exclusive jurisdiction over vote-counting disputes, with no power of review in the state's conventional supreme court, is something of a return to the original historical understanding on this issue. It is not a complete return, however, insofar as it recognizes that legislative bodies have tended to be biased by partisanship in their adjudication of vote-counting disputes. (This bias was evident, for example, in the 1792 dispute.) The move to increased judicial involvement in vote-counting disputes, throughout the nineteenth and twentieth centuries, was with the hope that judicial adjudication of these disputes would be more impartial—unbiased by partisanship—than the legislative adjudication of these disputes.

But, alas, the legacy of the presidential election of 2000, as well as other less well-known examples, is that giving conventional courts the authority to adjudicate vote-counting disputes is no way to guarantee impartiality or the appearance of unbiased nonpartisanship. ⁶² Instead, a primary lesson of the Lake Wobegone Recount, where both the State Canvassing Board and the three-judge trial court operated impartially, is that what matters is not whether the body is officially judicial, but instead how it is structured and who sits on it. Thus, the SERT should be specifically designed so that its rulings are inherently untainted by partisan bias, and once designed in this way its rulings should be unreviewable by a conventional court. So constituted, the SERT combines the best features of both historical and contemporary wisdom.

Nonetheless, it may help modern readers to be more comfortable in giving the SERT this exclusive jurisdiction if the SERT is officially designed as a judicial court under state law. That way the SERT is not unlike a special tax court, or court of claims, or other special-purpose court that decides a category of cases that state law has determined are best handled by a specialized institution rather than courts of general jurisdiction. I have no objection to this approach, as long as the SERT's proceedings have the character and adhere to the timetable that I have described. As I have already indicated, it would be fine to call this maximally fair electoral tribunal the SERC, the State Elections Review Court, rather than the SERT. The point is not its name, but what it does, the schedule it keeps and, most especially, the balance and impartiality that are inherently built into its composition.

There is, of course, no way for state law to deprive federal courts of jurisdiction over issues of federal law, including federal constitutional law, that might arise in the context of a dispute over the counting of ballots in a statewide election. Nevertheless, one can hope that, if a state has a SERT that is maximally fair in its inherent composition, then a federal court will abstain from interfering with the SERT's proceedings on the ground that it is in no position to render a decision that would be fairer than the SERT's. Even on disputed issues of federal law relevant to the counting of ballots in the statewide election, the federal courts should trust the SERT to adjudicate these federal issues as fairly as they themselves would. ⁶³

But what if the SERT commits an obvious error on a question of federal law, one might ask? Should the federal court sit by and let that error stand uncorrected? These questions, although rhetorically powerful, seem relatively inconsequential as a practical matter. It is unlikely that a well-designed SERT will commit what all would agree is a clear mistake of federal law.

On the contrary, if the answer to an applicable question of federal law is patently obvious, then presumably a maximally fair SERT will discern this obvious answer and thus there would be no need for federal court intervention. Conversely, if the answers to the federal questions are not so obvious, then there is no reason to think that the way a federal court would answer them is superior to the answers that would be reached by the maximally fair SERT. Federal courts are not structured to be necessarily balanced and impartial in cases involving the counting of ballots in major statewide elections, including presidential elections, and thus federal courts cannot presume that their decisions in these cases would avoid a bias or tilt to one side of the dispute. In a situation where the SERT is inherently structured to avoid this kind of bias or tilt, it is preferable from a perspective of fairness to leave to the SERT—without any further judicial review—ambiguous issues of federal as well as state law. ⁶⁴

Indeed, with respect to the applicability of Equal Protection and Due Process to vote-counting cases, it should be possible to build into Fourteenth Amendment doctrine the principle that federal courts should defer to vote-counting decisions reached by state tribunals that are designed to be as balanced and impartial as possible. In other words, it should ordinarily suffice to defeat an Equal Protection or Due Process claim that challenges a state tribunal's vote-counting decision if it can be shown that the state tribunal was designed to be fair in the same way as I have described the SERT. Because most of the federal issues raised in vote-counting cases concern Equal Protection or Due Process, a doctrine of this sort would go far to eliminating the ability of the federal judiciary to interfere with the functioning of an appropriately designed SERT.

As part of this Fourteenth Amendment point, it is worth remembering that prior to the jurisprudential revolution of Baker v. Carr ⁶⁵ and Reynolds v. Sims ⁶⁶ it would have been impossible to prevail on a claim that the miscounting of ballots violated Equal Protection or Due Process. Indeed, even in cases involving clear evidence of egregious and intentional fraud in the selective counting of ballots, or the stuffing of ballot boxes, the prevailing doctrine before the Warren Court revolution demanded that there be no federal court interference with a state's vote-counting procedures. The leading case is Taylor v. Beckham, ⁶⁷ involving Kentucky's disputed gubernatorial election of 1899—a low moment in U.S. history as one of the two candidates was assassinated as part of the dispute. ⁶⁸ The dispute reached the U.S. Supreme Court on the claim that fraudulent vote-counting in Kentucky's legislature violated Due Process or Equal Protection. The Court held that it must “decline to take jurisdiction” ⁶⁹ over this Fourteenth Amendment claim because of the political question doctrine as previously articulated in Luther v. Borden, ⁷⁰ which involved a dispute over Rhode Island's electoral process. Although Luther was a precedent from before the Civil War and thus before the ratification of the Fourteenth Amendment, the Court in Taylor v. Beckham determined that the Fourteenth Amendment did not supersede the basic principle of judicial noninvolvement in electoral disputes.

The same principle prevailed in Lyndon Johnson's infamous victory over Coke Stevenson in the primary election for the U.S. Senate seat from Texas in 1948. ⁷¹ Stevenson went to federal court, alleging Fourteenth Amendment violations from the fabrication of two hundred extra votes for Johnson in the tallies for Ballot Box 13. Although the federal district court was prepared to consider this claim, Johnson's attorneys (including Abe Fortas) sought and secured an order from Justice Hugo Black that enjoined the federal district court from interfering with the state's vote-counting procedures. The basis for Justice Black's order was the same philosophy that governed in Taylor v. Beckham: the federal judiciary has no business supervising a state's vote-counting procedures no matter how egregious the evidence of improper counting may be. ⁷²

Bush v. Gore, of course, is directly at odds with the philosophy of Taylor v. Beckham and Justice Black's 1948 order. But the dissenters in Bush v. Gore invoked something of the spirit of Taylor v. Beckham when they asserted that the U.S. Supreme Court should not have intervened in 2000 to adjudicate Bush's claims of Equal Protection and Due Process violations arising from Florida's vote-counting procedures. ⁷³ There is no need here to engage in an all-or-nothing debate about which of the competing philosophies of Taylor v. Beckham or Bush v. Gore is the better jurisprudential approach. ⁷⁴ Instead, a middle-ground position is merely that the principle of noninvolvement in electoral disputes on the part of the federal judiciary is appropriate in the specific circumstance where a state has established a maximally fair tribunal for the adjudication of ballot-counting disputes.

One can consider this middle-ground position a “merits” point, rather than a “jurisdictional” one, if doing so is more palatable. Simply put, a claim of Due Process or Equal Protection violation lacks merit when the authoritative state body to ultimately decide all vote-counting issues is structured to be as fair to both sides of the dispute as it is possible to be. In this Article, I am less concerned with deciding definitively whether a “merits” or “jurisdictional” approach should be adopted. More important is to convince the federal judiciary, by whatever means feasible, that a mid-course correction is necessary to get the law on a sensible path somewhere between the extremes of Taylor v. Beckham and Bush v. Gore. Otherwise, there is the risk that the ruling of a well-designed SERT would be upended by a federal court that appears tainted, wittingly or not, by its own partisan bias. (Imagine a federal judge, motivated by partisan bias, undoing all the good work of the State Canvassing Board and Minnesota's judiciary in Coleman v. Franken.)

In sum, if a state gives its SERT exclusive jurisdiction over vote-counting disputes in statewide elections (as it should), and if federal courts refrain from interfering with an appropriately designed SERT (as they should), then the SERT should be able to meet its seven-week deadline for resolving vote-counting disputes. We must certainly hope that it can, because an appropriately designed SERT that complies with this schedule is our best—indeed only—chance of being able to resolve a disputed presidential election both fairly and expeditiously.

A. The doctrinal choice among strict, constructive, and substantial compliance

In Coleman v. Franken, the three-judge trial court was unwilling to protect absentee voters from official error that caused the failure of these voters to return proper registration forms. ⁷⁵ The Minnesota Supreme Court, by contrast, made clear on appeal that it would be inclined to take the exact opposite view, as long as a candidate laid the necessary evidentiary foundation that official error of this sort affected the outcome of the election. ⁷⁶ Indeed, the supreme court went out of its way to emphasize that “[t]he distinction between errors by voters and errors by election officials is an important one” ⁷⁷ and, therefore, a vote “should not be rejected because of…[a] mistake…on the part of the election officers.” ⁷⁸ (The disagreement between the two courts on this substantive point of law, however, made no difference in the outcome of the case, because at trial Coleman had failed to offer evidence that could have taken advantage of this doctrinal distinction. ⁷⁹ )

Purely from the perspective of which substantive rule for counting ballots is preferable, it would be hard to argue that the trial court's position was better than the supreme court's position. On the contrary, the supreme court's view seems intuitively superior: why should voters have their ballots discarded when they did nothing wrong, and official error frustrated their ability to fully comply with the registration requirement? Moreover, the Minnesota Supreme Court's position on this point is supported by a long line of judicial authority nationwide, as reflected in George McCrary's well-respected A Treatise on the American Law of Elections. ⁸⁰ Reviewing the relevant case law at the end of the nineteenth century, the fourth edition of this treatise concluded that collectively these precedents

disclose a well-defined disposition on the part of the courts to distinguish between acts to be performed by the voters, and those devolving upon the public officials charged with the conduct of the election. The weight of authority is clearly in favor of holding the voter, on the one hand, to a strict performance of those things which the law requires of him, and on the other of relieving him from the consequence of a failure on the part of election officers to perform their duties according to the letter of the statute where such failure has not prevented a fair election. ⁸¹

Like the Minnesota Supreme Court in Coleman v. Franken, which echoed McCrary's summation in virtually identical language over one hundred years later, the prevailing view among the nineteenth-century precedents viewed it objectionable “to dis[en]franchise the voter because of the mistakes or omissions of election officers.” ⁸²

This view, adopted by both McCrary and the Minnesota Supreme Court, is what I have termed the doctrine of constructive compliance, a middle-ground position that is different from strict compliance on the one hand and substantial compliance on the other. ⁸³ Strict compliance would invalidate a ballot even when official error is entirely responsible for the ballot's deviation from state law. This arguably harsh position is the one adopted by the three-judge trial court in Coleman v. Franken. Substantial compliance would count a ballot even when the voter's error is entirely responsible for the ballot's deviation from state law. This position is the one that both Franken and Coleman advocated at various times during their eight-month-long dispute, when each was attempting to harvest more previously rejected absentee ballots. But this position was rejected by both the three-judge trial court and the Minnesota Supreme Court.

Constructive compliance carves out a space between the doctrines of strict and substantial compliance on the ground that voters constructively comply with state law when they take every step they can to cast their ballot properly but election officials have made a mistake that prevents them from doing so. In this circumstance, the doctrine of constructive compliance mandates the counting of this ballot. But when voters make the mistake that causes their ballots to be noncompliant, they have not constructively complied, and thus the doctrine of constructive compliance joins with strict compliance to reject the ballot in this circumstance.

B. The necessity of an impartial institution to choose & apply doctrine

We may assume that the Minnesota Supreme Court had the better view, by embracing the doctrine of constructive compliance, than the three-judge trial court. Even so, it does not follow that the trial court was unfair or unreasonable in its insistence on strict compliance.

At the time of the Coleman v. Franken trial, Minnesota law was far from crystal clear on whether the supreme court's position was open to the trial court. On the contrary, there was good reason for the trial court to believe that it was obligated to insist on strict compliance. Reaching back into history, one could find Minnesota precedent supporting the trial court's adherence to strict compliance, especially in the specific context of absentee ballots, and thus most directly applicable to the Coleman v. Franken dispute. ⁸⁴ Moreover, from a national perspective, there was longstanding precedent to support either strict or constructive compliance, as McCrary's treatise itself acknowledged. Putting the point euphemistically, McCrary characterized the decisions on point as “not entirely harmonious.” ⁸⁵

More significantly still, as McCrary also acknowledged, there necessarily were situations in which the doctrine of constructive compliance must give way to strict compliance. In other words, even under the more voter-friendly view, there were circumstances in which official error could not be excused, despite the fact that voter disenfranchisement would be the consequence. For example, if an official error caused a voter to cast a ballot after the statutory time for closing the polls, that official error still might be irremediable under state law. ⁸⁶ In this situation, the priority of enforcing the mandatory poll-closing deadline would trump the goal of avoiding voter disenfranchisement induced by official error. (The same point might apply to the deadline by which absentee ballots must be received from the post office in order to count. It might be the post office's fault that these ballots arrive late, but state law still might require their rejection.)

Perhaps, then, the trial court in Coleman v. Franken rightly, or at least reasonably, thought that the voter's failure to register fell into this irremediable category. On this view, being registered was an absolutely essential prerequisite to being entitled to vote. Even if official error caused the particular voter's failure to register, there could be no avoiding the consequence of the voter's disenfranchisement: the ballot of an unregistered voter simply cannot count.

In cases where reasonable jurists can adopt opposite positions on such a basic point, it is of overriding importance that the tribunal that adjudicates the disputed election—especially one with the high stakes of Coleman v. Franken, or a presidential election—be constructed to be strictly impartial and unbiased. As long as the tribunal satisfies this institutional requirement, whatever substantive position it adopts concerning the applicable ballot-counting rule will qualify as meeting the essential standard of electoral fairness and legitimacy. After all, if it is debatable among reasonable observers as to what is the correct ballot-counting rule to apply, no individual observer holds some kind of higher ground from which they can claim greater objectivity. In the midst of any dispute over the counting of ballots in a high-stakes election, the perspective of any individual observer may be affected (however unwittingly) by a personal preference about which candidate prevails. This risk, of course, is especially great in a presidential election, when virtually every conscientious U.S. citizen feels a stake in the outcome of the dispute and has an opinion about it.

Thus, in the midst of a vote-counting dispute in a high-stakes election, it is futile to think it will be possible to discern the objectively correct vote-counting rule whenever the existing statutory law leaves room for reasonable debate on this point. Instead, the best that the legal system can do is to construct a fair tribunal that is balanced and impartial to both sides of the dispute in its membership. Then, whatever that fair tribunal decides on the relevant question of law should be accepted as correct for the purpose of resolving the particular case.

To be sure, it would be better if in advance of Election Day a state's statutory law was so abundantly clear that no reasonable person could debate what vote-counting rules require with respect to any factual issue that might arise concerning any ballot cast in a high-stakes election. But as Coleman v. Franken abundantly demonstrates, the expectation that a state could meet this standard would itself be unreasonable. Even Minnesota, which in comparison to other states had a relatively clear elections code and a relatively well-run system of election administration, could not avoid all ambiguities regarding the applicable vote-counting rules in Coleman v. Franken. In particular, it was unable to avoid ambiguity on the basic question of whether strict or constructive compliance was the governing standard for disputes over particular ballots.

Indeed, given the state of relevant Minnesota precedents at the time Coleman v. Franken commenced, it would not have been unreasonable for the three-judge trial court to adopt even the substantial compliance standard, rather than either strict or constructive compliance. Moreover, reliance on McCrary's treatise would have provided some support for that position. Although McCrary preferred constructive compliance, his treatise's survey of nineteenth-century precedents revealed considerable, if not majority, support for the more lenient doctrine of substantial compliance. That support had been growing steadily in the twentieth century, including in Minnesota. ⁸⁷ Therefore, by the time of Coleman v. Franken, a reasonable case could be made—as it was by both Franken and Coleman at various times—that the right position even for absentee ballots under Minnesota law was the voter-friendly doctrine of substantial compliance.

Thus, the judiciary in Coleman v. Franken faced a genuinely open choice among the three basic positions of strict, constructive, and substantial compliance. Any of these choices would have been reasonable under Minnesota law at the time. In this circumstance, then, what mattered was that the tribunal that made this choice was balanced and fair to both sides—not that its choice could somehow be proven objectively correct.

Moreover, the fact that the Minnesota Supreme Court made a different choice from the three-judge trial court does not justify the time-consuming appeal in Coleman v. Franken. Rather, it falls in the category of two equally fair tribunals reaching opposite conclusions on a point of law over which they could reasonably differ, although in this case their divergence did not matter to the bottom-line outcome of which candidate won the election. Even if one might find the Minnesota Supreme Court's opinion a preferable treatment of the same issue, the three-judge trial court's handling of the case was sufficiently fair to resolve the disputed election.

C. Implications for Hasen's “Democracy Canon” thesis

The foregoing analysis concerning the relationship of strict, constructive, and substantial compliance—and the priority of securing a fair tribunal over the choosing of the ideal vote-counting rule—requires some rethinking of the so-called “Democracy Canon” recently advocated by Professor Richard Hasen. ⁸⁸ This canon of statutory construction, which calls upon judges to interpret election laws with the goal of enfranchising voters, embraces the doctrine of substantial compliance. ⁸⁹ Hasen argues that this canon has a longstanding historical pedigree going “back to at least 1885.” ⁹⁰ But the debate in Minnesota among which of the three alternative positions to adopt, as well as a strong historical pedigree supporting all three positions, means that Hasen's Democracy Canon cannot claim normative or historical supremacy without at least considerable further analysis.

First of all, at a minimum, the McCrary position, as echoed by the Minnesota Supreme Court, shows that the Democracy Canon needs a more nuanced elaboration. It is not entirely accurate in terms of nineteenth-century precedents to say that they collectively support the “substantial compliance” position, which is how Professor Hasen essentially describes it. Instead, if the McCrary treatise is accurate, and there is no reason to think that it is not, the constructive compliance view—which excuses official but not voter error—was the historically predominant one. ⁹¹

Additionally, there have been forceful arguments against adoption of the Democracy Canon going all the way back to 1792. As I have detailed elsewhere, ⁹² that year involved the disputed gubernatorial election in New York, with John Jay challenging the incumbent George Clinton. The dispute concerned the transmission of one local county's ballots to the Secretary of State in violation of statutory rules that required delivery by the local sheriff rather than other local officials. Supporters of Jay, who would have won if these ballots had been counted, advocated for an early version of the so-called Democracy Canon. Claiming that the statutory violation was a mere technicality, the enforcement of which would wrongly disenfranchise innocent voters, Jay's friends urged for construing the law liberally to protect the constitutional right to vote. But on the other side were Clinton's advocates, including Aaron Burr and the then-current U.S. Attorney General Edmund Randolph, who argued strenuously for a strict construction of the ballot delivery statute on the ground that it was designed to protect against ballot-tampering and electoral fraud. The authoritative body in the state, the legislative Canvassing Committee, expressly adopted the strict construction argument, rejecting the Democracy Canon position embraced by the dissenting Canvassers. ⁹³

Whichever side was right or wrong in this early New York dispute, the key point here is that there will always be arguments on both sides of the “Democracy Canon” versus “strict construction” debate. ⁹⁴ In Coleman v. Franken, Coleman happened to take the Democracy Canon position, with Franken echoing Aaron Burr in favor of strict construction. Unless it is open-and-shut in the particular state regarding which side has already won this debate—and it almost never is—the adjudicatory tribunal necessarily will be favoring one candidate (and one political party) by adopting either the Democracy Canon or strict construction. ⁹⁵ Both sides will be able to muster historical precedents to support their position, and indeed Coleman v. Franken will now be invoked as an important authority in support of the strict construction side of this debate. ⁹⁶

Thus, contrary to Hasen's suggestion, history does not point entirely in one direction. For this reason, the McCrary constructive compliance position can be viewed as an attractive middle ground, which may help explain why it has a leading claim to historical superiority. The future may be served best if Coleman v. Franken is viewed as a support for this middle ground, rather than favoring the strict construction side of a rigid dichotomy. But still, given the plausibility of contending alternatives, any future interpretation of where Coleman v. Franken stands within this historical debate should be rendered by a tribunal that is as transparently impartial as was the three-judge trial court that decided Coleman v. Franken.

Moreover, and perhaps more important, the cliché about the devil being in the details is apt here. It matters much less which general position a court takes—substantial, constructive, or strict compliance—and much more how the court views the particular statutory rules and the relevant facts in front of it. A court invoking strict compliance might nonetheless excuse some missing details of an address on an absentee ballot envelope, accepting “175 Elm” for “175 Elm Street” perhaps, whereas a court invoking substantial compliance might not excuse an address that lacks both a city and a zip code. ⁹⁷

Additionally, it is not always clear how to apply the McCrary middle ground: how would it apply, for example, to New York's ballot transmission law of 1792? It was official, not voter, error that caused the ballots to be delivered in violation of the statutory requirement that the county's sheriff be the one to take this responsibility. Obviously, it is undesirable if voters suffer—their ballots are discarded—because of this official mistake. On the other hand, however, if the delivery rule really does protect against the risk of ballot-tampering, to ignore a breach of the rule would be to invite the evil of stolen elections. How to weigh the one against the other, particularly in the context of a specific dispute over which candidate won the governorship?

Ultimately, whether the tribunal's ruling will be perceived as fair and legitimate will depend on the bottom-line result in the case, not on what generic doctrine the tribunal uses to reach it. One candidate will win and the other will lose, and because of that inevitability, it matters most that the tribunal be genuinely neutral between the two—and perceived as such by the public. If that reality and perception of impartiality is secured, which generic doctrine the tribunal employs (substantial, constructive, or strict compliance) is secondary to the result's ultimate fairness, legitimacy, and acceptability.

A. The future of Bush v. Gore after Coleman v. Franken

Coleman v. Franken, once ended, immediately became the most significant decision since Bush v. Gore on the applicability of federal Equal Protection to vote-counting disputes. Bush v. Gore was itself notoriously vague on this point, and thus the hope was that Coleman v. Franken would clarify this area of law. ⁹⁹ Indeed, the conventional wisdom was that Coleman v. Franken showed that it would be impossible to win an Equal Protection claim on the ground that some ballots were counted in violation of state law and therefore other similarly invalid ballots, which had been properly rejected, should now be counted as well.

This conventional wisdom, however, has been upended by an important new Sixth Circuit precedent, Hunter v. Hamilton County Board of Elections, ¹⁰⁰ which now competes with Coleman v. Franken for the status of being the most significant implementation of the Equal Protection ruling in Bush v. Gore. This Article is not the place to detail the facts and reasoning of Hunter. ¹⁰¹ It is enough to say that Hunter, like Coleman, involved a situation in which some ballots had been counted in violation of state law, but other comparable ballots had not been counted. ¹⁰² Yet, unlike in Coleman, the court in Hunter ruled that this differential treatment of similarly invalid ballots violated federal Equal Protection because it was “arbitrary,” without any justification or explanation. ¹⁰³

There is obvious tension between the Equal Protection reasoning of Coleman and Hunter, which only the U.S. Supreme Court can resolve. In the meantime, lawyers are likely to focus on the “arbitrariness” standard articulated in Hunter. When a dispute arises over the outcome of an election, and it turns out that some similar ballots have been counted whereas others have not, one side will argue that this differential treatment of similar ballots is “arbitrary,” while the other side will attempt to defend it as not “arbitrary.” Coleman v. Franken will come to be cited as an example of a case where the differential treatment of similar ballots satisfied a non-arbitrariness standard. But, as long as Hunter remains good law, Coleman will not be a sufficient basis for deflecting an arbitrariness inquiry altogether (on the ground that the clarity of the relevant state statute, without more, is enough to defeat an Equal Protection claim arising from the violation of that state statute). ¹⁰⁴

The prospects for this kind of case-by-case litigation on the “arbitrariness” issue—that is, in the context of the particular facts of each disputed election, whether the differential treatment of similar ballots is “arbitrary” or not—is inauspicious. The reason for this pessimism is that this “arbitrariness” standard is inherently vague. A finding of arbitrariness, or not, on the facts of each case is likely to be affected by an individual's political perspective. Indeed, in Hunter itself, there was a partisan tinge to the Sixth Circuit's ruling, which was a 2-1 split on the arbitrariness issue. The two judges in the majority were both Democratic appointees, and their finding of arbitrariness on the facts of that case was a judicial victory for the Democratic candidate involved in that particular ballot-counting dispute. Conversely, the one Republican appointee on the Sixth Circuit panel did not find the differential treatment of ballots to be arbitrary—a view which supported the position of the Republican candidate in that case. ¹⁰⁵

Since arbitrariness is inevitably in the eye of the beholder, it is all the more imperative that the tribunal with the ultimate authority to adjudicate the arbitrariness issue is structured to be evenly balanced and impartial to both sides of the ballot-counting dispute. For this reason, in future cases it should be built into the Equal Protection analysis expressly that, as long as the tribunal that resolves the dispute under state law is balanced and impartial in this way (as I have described the model SERT to be), then no federal court should second-guess the state tribunal's decision on grounds of arbitrariness. There is no reason a single federal judge, or a three-judge federal appellate panel, or even the U.S. Supreme Court itself, should think that it is in a better position to address the arbitrariness issue than a state tribunal that (like the model SERT) is structured so that it is maximally fair to both sides.

The state proceedings in Hunter lacked any such fair tribunal, and therefore it was not inappropriate for the Sixth Circuit to adjudicate the arbitrariness issue in that context. But the three-judge trial court in Coleman v. Franken was structured to be balanced and impartial towards both sides and thus was maximally fair in the requisite way. The Minnesota Supreme Court's unanimous affirmance of the trial court's own unanimous rejection of Coleman's Equal Protection claim hardly undercut the inherent fairness of this decision. Thus, insofar as Minnesota's judiciary in Coleman v. Franken implicitly found that the local election officials had not been arbitrary in their differential treatment of absentee ballots, it would have been inappropriate for the federal judiciary to second-guess this determination of non-arbitrariness. The inherent fairness of the state's proceedings should have insulated it from any further federal judicial review.

B. The absence of federal interference when the state is fair

At the time of Coleman v. Franken, neither substantive Fourteenth Amendment law nor the political question doctrine (or other procedural rule) foreclosed the possibility that a federal court might review the merits of the state-court rulings on whether or not to count particular ballots in that case. ¹⁰⁶ And, of course, the U.S. Senate had the constitutional authority to overturn the state judiciary's certification of electoral victory. But neither form of federal review was invoked.

Although there was no formal barrier to federal intervention, none occurred in large part because the state's institutions were perceived to be fair in their treatment of both sides. To be sure, the fact that the Democrats controlled the U.S. Senate in 2009 would have made it difficult for Coleman to go there to overturn the state's final certification of Franken's victory even if it were perceived that the state had been biased in favor of Franken. But consider what would have happened if a fair tribunal in the state had awarded the election to Coleman, and the Democrats in the Senate had been tempted to overturn that fair result from purely partisan motives. Or, conversely, imagine that the Senate had been controlled by Republicans at the time and had attempted, for purely partisan reasons, to overturn the fair victory that Franken actually received from the state's proceedings.

My conjecture is that, in either of these imaginary scenarios, the very fairness of the state's proceedings would have restrained these partisan temptations. U.S. history is littered with examples in which partisanship at the federal level acts to undo partisanship for the other side at the state level. Most famously, the 8-7 partisan vote of the federal Electoral Commission that awarded the 1876 presidential election to Hayes counteracted anti-Reconstruction efforts among Democrats in the South to give the election to Tilden. ¹⁰⁷ Similarly, the 5-4 decision of the U.S. Supreme Court in Bush v. Gore, which was perceived by many as partisan, was surely motivated by a desire to undo the 4-3 ruling in the same case by the Florida Supreme Court, which just as equally was susceptible to the perception of partisanship.

To take an example from a U.S. Senate election, the stalemate over the outcome of New Hampshire's senatorial vote in 1974 fits this pattern. A state tribunal controlled by Republicans, after a series of controversial rulings on specific disputed ballots, declared the Republican candidate the winner by just two votes. The Democrats held the majority in the U.S. Senate at the time, and they used this power to insist on a new election. ¹⁰⁸

The upshot of all these examples, as well as others that could have been added, seems to be that federal institutions will feel unconstrained to act in a partisan manner in response to partisanship that taints how state institutions perform their own role in the resolution of ballot-counting disputes. “Fight fire with fire” seems to be the mantra of the party that dominates the federal forum at the time. But what if the state institutions do not play with fire in the first place? What if the state actually adjudicates the vote-counting dispute with a procedure that is transparently fair to both sides and equally so? In this situation, would the party that controls the ultimately authoritative federal institution still feel free to decide the outcome of the election based on partisan considerations?

Coleman v. Franken may be the first major disputed election to raise these sorts of questions. It is the first either presidential or U.S. Senate election involving a major dispute over the counting of ballots where the state has empowered inherently balanced and impartial tribunals to resolve the dispute. The fact that there was no serious effort to find a federal institution to overturn the state's fair proceedings, based on partisanship, is at least suggestive. The embarrassment of a transparently partisan repudiation at the federal level of a transparently nonpartisan adjudication at the state level may be too much even for the most rabid of partisans. Admittedly, however, a sample size of one does not inspire much confidence in this conjecture.

But there is a way to turn this point around. If one thinks that a federal institution controlled by partisanship likely would indeed overturn a state's adjudication of a vote-counting dispute even when the state has been as nonpartisan and evenhanded as possible in its own proceedings, then one should be very troubled by the existing nature of our federal institutions. It would not be a pretty sight to see a partisan U.S. Senate overturn a state's proceedings as fair as those used by Minnesota for its 2008 election. Even worse would be if Congress, out of partisanship, overturned a presidential election that had been resolved fairly in the “swing state” where a significant dispute over the counting of ballots for presidential electors had occurred.

To avoid any possibility of such ugliness, it would be desirable if new federal institutions could be created to guarantee nonpartisanship and evenhandedness at the federal level, to be ready whenever the next major dispute over a U.S. Senate or presidential election arises. But, in the absence of a constitutional amendment, such institutions must be merely advisory to the powers that currently exist in the U.S. Senate (for an election of a Senator) or in Congress more generally (for a presidential election). At most, with respect to a disputed presidential election, a new federal institution structured to be maximally fair to both sides, could play the role of a statutory tiebreaker in the event that the two Houses of Congress were split on the outcome (presumably based on their opposite partisan motivations, as in 1877).

In any event, given the relatively remote possibility that new nonpartisan and evenhanded federal institutions will be in place when the next disputed U.S. Senate or presidential election occurs, I would prefer to hope that my conjecture is correct. In other words, the hope is that, at least if a state adopts a maximally fair process for resolving this kind of dispute, the existing federal institutions will not act based on partisanship to overturn the result of that maximally fair process. Insofar as Minnesota's experience in resolving its disputed 2008 U.S. Senate election gives us any basis for this hope, this additional lesson from Coleman v. Franken is a somewhat comforting one.