Campaign Diaries

As expected, the court in charge of Norm Coleman’s election challenge ruled Al Franken to be the winner of Minnesota’s Senate race. As expected, the Republican’s camp immediately vowed to appeal to the state Supreme Court - thus ensuring that today’s much-awaited decision brings no finality to the interminable Franken-Coleman battle.

The ruling

The 3-judge panel in charge of the trial had already rendered its ruling on the most issue in Coleman’s lawsuit - rejected absentee ballots. Out of the thousands of ballots that the GOP wanted counted, the judges agreed to tally only 351 - and Franken netted 87 votes, expanding his lead to 312 votes. Even if the judges had ruled in Coleman’s favor on the remaining issues, it would not have been enough for him to overtake his opponent.

That said, there were important reasons to await today’s ruling: What would be the scope of the decision? Would the judges pave the way to a Coleman appeal? The answer is clear: The judges’ decision is as close to a triumph as Franken could have hoped for.

1. Coleman lost on both remaining issues: It would not have been enough for Coleman to overtake Franken, but he could at least have hoped to meaningfully cut the Democrat’s lead by getting the court to throw out 132 ballots that went missing in Minneapolis and more than 100 ballots Republicans say have been counted twice. Instead, the court rejected both of these claims, leaving the missing ballots and the allegedly duplicated ballots in the final count. That leaves the final margin as a 312-vote lead for the Democrat.
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2. The ruling is unanimous: Had the court split and had one of the judges criticized the actions of his colleagues, it could have given Coleman a dissent to champion all the way to the state Supreme Court. Yet, it looked clear that there was little dissension between the judges, who had delivered every decision unanimously. Coleman had no reason to expect a scathing dissent - but he could have hoped for the judges to disagree on some topic - anything to latch unto. Instead, the ruling was once again unanimous - and that will undoubtedly influence the state Supreme Court. It will also influence public opinion: One of the judges was appointed by a Democrat, one by a Republican, and one by an independent Governor; that makes for a nice symbol about which Franken can boast.
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3. A sharp rebuke: Coleman might have at least hoped for the 3-judges to show some sympathy for his plight and to leave a door open for him to make an equal protection argument in a higher court. Instead, the court faulted the Coleman campaign for asking them to ignore the state’s election requirements. “The overwhelming weight of the evidence indicates that the November 4, 2008 election was conducted fairly, impartially, and accurately,” the judges wrote. “There is no evidence of a systematic problem of disenfranchisement in the state’s election system, including in its absentee-balloting procedures.”

The odds already favored Franken heading into this trial. By the process’s completion, the Democrat has only expanded his lead and Coleman’s prospects to convince the state Supreme Court were made all the more dimmer by the 3-judge panel’s ruling: Republican lawyers will not only have to convince judges that the election process was unfair, they will also need to persuade Justices to reverse a unanimous and strongly-worded lower court decision.

And that makes it all the more difficult to imagine Coleman prevailing in higher courts.

What is next

Norm Coleman now has 10 days to file a notice of appeal - and his campaign wasted no time before confirming that he would take this step. The Minnesota Supreme Court will then have to accept the case and get to it as quickly as possible: State law holds than an election review “takes precedence over all other matters before the Supreme Court.” A ruling could come as early as May or June.

Coleman’s basic contention in the appeals court will be similar to past arguments: Different counties used different standards to decide whether their absentee ballots should be counted. His lawyers will note that some absentee ballots that had been accepted by counties early on in the process should have been rejected under the guidelines laid out by the 3-judge panel. (In its response to today’s ruling, Coleman’s spokesperson already accused the court of leaving “illegal absentee ballots” in the final tally.)

By letting this lack of uniformity stand, Republican lawyers will conclude, the court has violated voters’ right to equal protection. Since the U.S. Constitution has an equal protection clause, that argument could pave the way for Coleman to appeal to federal courts if the state Supreme Court does not rule his way.

We know what the Coleman campaign will do next, and we know what they will say next. So what remains to be determined?

The first question is whether any Justices will recuse themselves from the case. Chief Justice Eric Magnuson and Justice G. Barry Anderson sat on the Canvassing Board, whose actions are now being contested by Coleman’s; it would seem fitting for them not to participate in the Supreme Court’s hearing. Now, there is justified pressure on a third Justice, Christopher Dietzen. As Senate Guru reports, Dietzen is a Republican who has donated a total of $500 to Norm Coleman in 2001 and 2004 - certainly enough of a show of support to raise questions about his impartiality. If all 3 Justices recuse themselves - and whether they do is entirely up to them - it would leave only 4 to hear the case.

The second question is whether the Justices will be willing to even entertain Coleman’s arguments - especially after a lower court issued quite a strong rebuke. While concern over some counties’ excessively lenient standards might be justified, Coleman still has to propose a workable alternative: Ballots that have been counted cannot be uncounted, and the GOP’s proposal to include thousands of absentee ballots that are clearly not conform to state law was ridiculed by the court. Do Republicans have a solution to their equal protection complaint that would not aggravate the problem further?

The third looming question is what happens if the state Supreme Court rules in Franken’s favor: Will Coleman will file an appeal in federal court? Will any federal judge even accept to hear his case? And will Governor Pawlenty agree to sign Franken’s election certificate if the case is still alive in the federal system? These are all crucial questions, but we can talk about them in more detail once Minnesota’s high court rules!