Subject: Re: Fwd: VOTE - absentee ballots after candidates' death; EQ PRO reabsentee voters
From: Rick Hasen
Date: 4/22/2003, 3:32 PM
To: election-law@majordomo.lls.edu
CC: David Schultz <dschultz@gw.hamline.edu>
Reply-to:
rick.hasen@mail.lls.edu

David's statements indicate the difficulty with putting into operation the equal protection standard from Bush v. Gore. I think it is important to explore these issues when we are not in the context of an election dispute, when the stakes are so high and the partisan results of arguments so obvious.

I see plausible equal protection arguments on both sides of the question raised by David:

If the Minnesota court threw out all the old absentee ballots as the Democrats suggested, that would have disenfranchised those voters who wanted to vote for Coleman (or the third party candidates on the ballot) but who did not have the time or ability to vote again (consider for example, a person who voted by absentee who went on vacation after voting).

If the Minnesota court (as it did) said ballots cast for anyone but Wellstone would be counted, that could be said to have disenfranchised those voters who voted for Wellstone but who did not have the time or ability to vote again.

The majority provided very little argument to support its view over the contrary view. Justice Page said in the concurrence/dissent that the counting of votes of everyone except the Wellstone voters raises "fundamental problems" at the "core of democracy." The Justice said this alternative equal protection argument should not have been resolved "without any citation to authority or law."

What else could the majority have said? One thing it might have said is that ex ante, each voter faces a chance that he or she will vote for a candidate who might die before election. State statutes provided rules for how to deal with such a death, and among those rules are absentee ballot rules that tend to favor voters who vote for candidates that remain living. These rules do not favor particular parties or candidates. Under these circumstances, the voting system does not "value one person's vote over that of another" under the equal protection standard of Bush v. Gore.

Rick

David Schultz wrote:
My reading of ERLANDSON V. KIFFMEYER (the MN absentee ballot case) is
that the dissent was closer to getting it right than was the majority.

Justice Page was correct in noting that the brief and oral arguments of
the state DFL Party were aimed at advantaging likely DFL voters but
still ignored that counting the absentee votes already mailed to be
counted in the same manner as if no vacancy occurred.  He notes that
BUSH V. GORE  might control here because some votes would be counted but
others not.

In essence, because we would be treating some absentee voters different
from other absentee (and regular voters), we had a Equal Protection
problem.  I made this argument last October locally and also argued that
the remedy that the Court ordered and which that which the DFL wanted
also suffered from a viewpoint discrimination problem.



David Schultz, Professor
Hamline University
Graduate School of Public
Administration and Management
MS-A1740
1536 Hewitt Avenue
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3098 (fax)

  
Rick Hasen <rick.hasen@lls.edu> 04/21/03 06:35PM >>>
        
I have some extended comments on this case, including the
concurrence/dissent's reliance on Bush v. Gore's equal protection
holding, at
http://electionlaw.blogspot.com/2003_04_01_electionlaw_archive.html#200179081


I believe this is the first time that an appellate court opinion has
discussed the meaning of Bush v. Gore's equal protection holding.  Here,
though, it was only in the concurrence/dissent.

Rick

David Schultz wrote:
The Minnesota Supreme Court FINALLY released its decision on
theabsentee ballots regarding the Wellstone/Mondale/Coleman race from
lastNovember.  In November all that it had issued was the order.Attached
is the opinion.David Schultz, ProfessorHamline UniversityGraduate School
of PublicAdministration and ManagementMS-A17401536 Hewitt AvenueSt.
Paul, Minnesota 55104651.523.2858 (voice)651.523.3098
(fax)7-02-1879		Mike Erlandson, John Eisberg and
MollieLorberbaum, Petitioners,			vs. Mary Kiffmeyer,
Minnesota Secretaryof State, and Patrick
O'Connor,			Hennepin  County
Auditor/Treasurer,individually and on behalf of
all			County and Local Election
Officers;Kathleen T. Blake, Michael J.			Blake, Tom Kelly
and Ron Eibensteiner,individually and on behalf of
the			Republican Party of
Minnesota.			Original
Jurisdiction.	1.	After the creation of a vacancy on
the ballot bythe death of a major party candidate for United States
Senatorless than 16 days before the general election, Minn. Stat.
§204B.41 (2002) properly requires that absentee ballots returnedto
election officials before a supplemental ballot becameavailable must be
counted as if no vacancy had occurred, unless areplacement absentee
ballot is received from the voter before theapplicable
deadline.	2.	In the circumstances of this case and in
theabsence of any rational justification proffered by the state,
theprohibition in Minn. Stat. § 204B.41 against mailing
supplementalballots to voters to whom regular absentee ballots had been
sentviolates the equal protection rights of absentee voters whocannot
obtain a replacement ballot in person, and electionofficials were
therefore required to mail replacement ballots,including a supplemental
ballot, to absentee voters who requestedthem.	Petition granted in
part, denied in part.  Blatz, C.J.	Concurring in part and
dissenting in part, Page, J. andGilbert, J. (concurring
only)	Concurring, Gilbert, J.  -----You are subscribed to
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-- Rick HasenProfessor of Law and William M. Rains FellowLoyola Law
School919 South Albany StreetLos Angeles, CA  90015-1211(213)736-1466 -
voice(213)380-3769 -
faxrick.hasen@lls.eduhttp://www.lls.edu/academics/faculty/hasen.htmlhttp://electionlaw.blogspot.com

  

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com