OHIO STATE JOURNAL ON DISPUTE RESOLUTION
[Vol. 27:2 2012]
effort so that the interests of 11 ,000 aggrieved voters in the state would be
represented in the litigation. 148 Despite the effort of the campaigns to
incorporate the public interest into their narratives, it remained a partisan
effort to do so; the problem of representation of the public's interest therefore
persists.
The problem of the public interest brings to light one of the most difficult
issues in mediating public disputes: should the parties be able to define the
contours of agreement if such agreement fails to take into account the public
interest? An issue raised on Secretary Ritchie's conference call is illustrative
of this point.
C. Party Agreement and the Problem ofDuplicate Ballots
One of the biggest sticking points on the call concerned duplicates. When
absentee ballots arrived tom or otherwise mutilated through the postal
service, standard election administration practice guided that election
officials would make a new ballot that could be fed into the tabulating
machines. Original ballots were marked Original and set aside; duplicated
ballots were marked Duplicate and also saved. The original Recount Plan
stipulated that election officers administering the recount should count the
duplicate ballots. But the redlined document took issue with this plan,
advocating instead that original ballots be used in the count (on the theory
df (order making the 64-person suit part of the pending litigation between AI Franken and
Norm Coleman in Ramsey County).
14 8 Weiner, supra note 62, at 173. Order Denying Motion for Certification of a Class
Peterson v. Ritchie Minn. Dist. Ct., Feb. 23, 2009, No. A09-65, available at
http://moritzlaw.osu.edu/electionlaw/litigation!documents/Orderdenyingcertificationofacl
ass.pdf(denying Coleman's campaign class certification to 11,000 absentee voters). The
following are the grounds on which the court denied the class action certification: (a.)
MINN. STAT. § 204B.44, which governs the process of seeking a remedy to an error,
omission, or wrongful act in the election process, refers to "any individual;" it does not
contemplate a class-action suit; (b.) MINN. STAT. § 204B.44 gives Minnesota Supreme
Court original jurisdiction over such cases. In this case, Minnesota Rules of Civil
Procedure would not govern (as would apply to a district court), but rather Minnesota
Rules of Civil Appellate Procedure would apply to the Supreme Court. There is no
mechanism for class certification under Minn. R. of Civ. App. Pro.; (c.) If Rule 23 of
Minn. R. of Civ. Pro. did apply, Coleman's petition would nevertheless not qualify for
class certification on the basis that it lacked commonality, typicality, and adequacy of
representation-all requirements under Rule 23. /d. at 4, 6-7. First, the court found that
Coleman's petition lacked commonality in that although members of the class shared a
"common question of law," there were "unique questions of fact." !d. at 6. In addition,
the class lacked typicality and adequacy of representation in that "Coleman cannot
represent the class of absentee voters ... because he is not a member of that class." !d. at 7.
362
HeinOnline -- 27 Ohio St. J. on Disp. Resol. 362 2012
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