Campaign Diaries

In a press conference that concluded just minutes ago, former Senator Norm Coleman conceded the Minnesota Senate race, adding that he had called Al Franken to congratulate him on his victory. The ending of an eight-month saga, today also marks the final chapter of the GOP’s disastrous 2008 cycle: With Minnesota, Democrats picked-up a total of eight seats in last fall’s elections.

Today’s decision by the state Supreme Court essentially meant that the game was over for Coleman but he still had a small opening to delay matters. He wisely concluded that the odds of provoking an anti-GOP backlash among Minnesota voters were far greater than the odds he could be any more successful in federal courts.

Coleman’s decision saves Governor Tim Pawlenty from a painful dilemma. Had Coleman appealed and had Pawlenty signed the document, it could have put the Governor at odds with the Republican base - always a tricky situation for a presidential hopeful.

It also leaves the door open for Coleman to pursue a gubernatorial run in 2010. It remains to be seen whether Coleman pushed his contest far enough to durably alienate the public, but it’s clear is that he could not afford to prolong the legal battle any longer if he has any intention of running in 2010. (He sidestepped the asked about it at a press conference earlier today.)

And just like that, Democrats get an additional and reliable Senate vote. (Don’t forget that Ted Kennedy’s refusal to resign despite his year-long absence has been costing Democrats a vote since the spring of 2008; as such, Franken will only get them to 59.) Given that Franken’s victory has looked certain for months, it’s easy to forget that Democrats were pessimistic in the first few weeks after the recount; or that Franken never led before December 20th, 6 weeks after votes were cast; or that Franken didn’t look like he would able to keep up with Coleman back in the spring of 2008, when fellow Democrats were attacking him over past writings.

But at the end of the day, Franken rode the Democratic wave and successfully completed his transition from comic to serious politician - but not before setting up one last show for us to enjoy. However frustrating the past eight months have been, they also offered moments of pure theater, starting with the canvassing board’s week-long deliberation over challenged ballots - porn for political junkies, I called it.

Update: Among the deluge of coverage heralding Democrats for reaching 60 Senate votes just in time for health care reform and the Sotomayor hearings, credit to The Atlantic’s Josh Green for being one of the rare commentators to point out that Democrats only effectively control 58 seats - 59 if Byrd returns to Washington. That means they still need Republican votes to break cloture votes but they can no longer blame the GOP for obstructionism.

Nearly two months after a trial court ruled in favor of Al Franken, the Minnesota Supreme Court heard Norm Coleman’s appeal. While it is important not to read too much into judges’ behavior during questioning, they certainly did nothing to dispel the expectation that they would rule in the Democrats’ favor.

Both camps’ had filed their briefings more than two weeks ago, leaving the Justices ample time to start working on their decisions and come to today’s hearing their mind made up. In that context, it could be meaningful that the judges often sounded critical when questioning Coleman’s lawyer; by contrast, a number of them looked to be pushing Franken’s lawyer along, asking him to fine-tune some of his arguments rather than challenging the premises of his claims..

Let’s step back for a moment to remember Coleman’s basic contention. Because various counties used different standards to decide whether their absentee ballots should be counted, thousands of ballots were rejected despite similar ballots being accepted in other parts of the state - a lack of uniformity that the GOP claims violates equal protection. “Depending on where you sleep depends on whether your vote gets counted,” lamented Coleman’s attorney Joe Friedberg, labeling this a case of “significant disenfranchisement.”

In April, I explained that Coleman winning this argument could prove a long-term catastrophe for Republicans, as the left generally supports a more aggressive judicial use of the equal protection clause - including in electoral situations. But that does not seem to concern Coleman in the short-term. His proposed remedy: Counting thousands of additional absentee ballots, even if they violate guidelines set by state law. “Absent fraud, let’s get to the will of the voters,” said Friedberg. Franken’s response: Courts should apply the law “as it is written” and leave invalid ballots out of the final tally.

The (big) problem for Coleman is that this is the same argument he laid out in the trial court - but the circumstances have changed: He now has the burden of proving that the 3 judge-panel erred enough in rejecting this claim that the Supreme Court should not defer to the lower court. And the Justices seemed skeptical - at best- that he had done so.

At least four of the five judges who are now hearing this case criticized Coleman’s camp for not bringing in specific evidence that might support their argument and provide the judges a reason to overrule the lower court. “You are offering little more than an opening statement… but no concrete evidence to back it up,” said Chris Dietzen, who some observers said should recuse himself because he donated to Coleman’s past campaigns. Paul Anderson added “I am very bothered by your offer of proof.” Helen Meyer, who has donated to Democrats, and Alan Page made similar points during the hearing.

More generally, Page and Anderson sounded the least likely to side with Coleman, Lorie Skjerven Gildea sounded no more  convinced by Coleman and even Dietzen showed no sign that he was looking for a way to help the Republican. (There are only 5 Justices hearing the case as Chief Justice Eric Magnuson and Justice Barry Anderson recused themselves because they were members of the canvassing board, whose actions are now under review.)

On the other hand, many Justices expressed concern that ballots that should have been rejected made their way in the count. “How can we tell, from this record, who got the most legal votes?” asked Gildea to Franken’s attorney; “Were there illegally cast ballots included?” followed-up Anderson. There is no obvious way for the justices to address this issue: Once absentee ballots are separated from their envelope, there is no more evidence of which were the ones with problems. Thus, what Justices are essentially asking is whether there is any way to know with certitude who is the lawful victor.

Don’t forget: One of Coleman’s goals is to cast as much doubt as possible on the legitimacy of Franken’s victory. At best, that could allow Republicans to clamor for a revote; at worst, it would justify their attempting to filibuster the Democrat’s seating. A Coleman victory in the Supreme Court would mean that the Justices sends the case back to the lower court, ordering them to follow more lenient guidelines on deciding which absentee ballots should be included.

Overall, what should reassure Democrats is that the Court cannot outright declare Coleman the victor. What would be described as a “favorable ruling” for Coleman would be for the judges to send the case back to the lower court, ordering them to follow more lenient guidelines on deciding which absentee ballots should be included. Even if that occurs, it would only expand the universe of ballots - a necessary but not sufficient condition for a Coleman victory. (He would still need to gain a 312-vote edge out of those new ballots, a difficult task given that the Democrat has expanded his lead every time a new batch of ballots has been included in the count.)

The Court gave no indication as to when it might rule, though it looks likely that they will do so within 2 to 3 weeks. Of course, their decision might not be the final chapter in the case: Even if the judges rule in the Democrat’s favor, we will have to see whether Coleman appeals to federal courts, whether Governor Pawlenty agrees to sign the election certificate and whether Senate Democrats attempt to sit Franken.

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!

The Minnesota State Supreme Court ruled last week that Al Franken could not be seated before the completion of Norm Coleman’s contest. That decision left the Democrat with little hope of joining the Senate any time soon, but his chances of eventually being sworn in were in no way diminished. Quite the contrary, Coleman just suffered yet another damaging blow.

Let’s start with a recap

Ever since Coleman found himself trailing by 225 votes, he has been trying to convince judges to include a large enough pool of currently invalid ballots to have a chance at overtaking Franken. His lawyers have focused their attention on 11,000 rejected absentee ballots and have argued that most of these should in fact be included in the tally. Unfortunately for the GOP, the three judge panel has repeatedly shrunk that number. First, they ruled that Coleman was only allowed to challenge 4,700; then, they ruled that 12 of 19 categories of rejected absentee ballots should not be counted.

And that’s when Coleman finally caught a break in his effort to expand the universe of valid ballots. Two weeks ago, the court found that it would be potentially open to including a specific category: Ballots sent by a non-registered voter that do not contain a registration card outside of the secrecy envelope (as instructions require) but inside it. The court ordered elections to go back to the estimated 1,500 ballots that were rejected because they had been cast by non-registered voter who seemingly did not include a registration card and look at how many contained such a card inside the secrecy envelope.

The GOP immediately started to celebrate this decision: Out of these 1,500 ballots, Coleman’s camp was confident that several hundred would be discovered to contain a card and thus find their way in the tally. We had heard estimates as high as 700.

There will be no meaningful change

Today, the Secretary of State’s office compiled the reports provided by the various counties and announced the findings. The number of valid registration that were found ended up being a huge disappointment for the GOP: 89.

Even if the court does allow for all of these ballots to be included, that is far too low a number to make a difference in the Coleman-Franken battle. Not only is it far inferior to Franken’s lead of 225 votes but neither candidate should gain a significant edge. Consider: Some of these ballots might have skipped the Senate race, others will surely have voted for Dean Barkley, who received about 15% of the statewide Senate vote. Even if Coleman beats Franken among the remaining ballots, he cannot be expected to net more than 10 votes.

That might be better than nothing, but it is also a quasi-fatal blow to the Republican; this was one of his last chances to make a meaningful dent in Franken’s lead.

To get in the detail of these 89 ballots: 61 come from counties won by Norm Coleman, 28 come from counties won by Al Franken. Four counties have more than 10 ballots:

• Dakota County has 15, and it voted for Coleman 46% to 38%.
• Hennepin County has 15, and it voted for Franken 50% to 36%.
• Olmsted County has 15, and it voted for Coleman 47% to 38%.
• Washington County has 14, and it voted for Coleman 47% to 37%.

None of these margins are overwhelming, and the breakdown of these ballots will be unpredictable. That most come from red districts is a good sign for the Republican, but remember that we are talking about a constituency (newly-registered voters) that lean further to the left than the electorate at large: CNN’s exit poll of the Minnesota Senate race shows Franken leading by 18% among voters who had never voted before.

Understandably frustrated by this finding, the Coleman campaign is spin these number upwards and cling onto whatever piece of information can look favorable. For instance, election officials announced that an additional 72 ballots were found to contain previously unseen registration cards, but the cards were not valid or had been filled improperly. Coleman’s camp said it would like to review those cards, and is thus insisting that 161 potentially valid ballots were discovered this week rather than just 89 - at least insofar as Coleman’s camp is concerned.

Republicans are also hoping that the court to rule in their favor in the few categories of absentee ballots that have yet to be ruled on. Coleman’s lawyers are talking about a couple of hundred ballots that be added to the list based on these remaining issues.

In short: Coleman’s camp is as concerned with entertaining confusion as with making legally sound arguments. They are hoping that they can make the election look so messed up - “this is all floating around,”says Coleman’s lawyer Ben Ginsberg - that the judges and the public will conclude that the only remedy is to hold a new one. For now, the three judge panel has shown no indication that it is so dismayed by the proceedings that it would even consider recommending such a path.

In the first decisive ruling in three weeks of proceedings, the Minnesota court has delivered Norm Coleman has received a major blow that significantly limits the Republican’s prospects of catching up to Al Franken.

As has been the case for months, the latest dispute concerns rejected absentee ballots, thousands of which Coleman wants thrown in the universe of valid votes. After ruling in early February that Coleman was allowed to challenge 4,700 of these ballots, the court outlined 19 categories of rejected absentee ballots and asked the campaigns to argue whether each category of ballot should be counted or rejected.

This sounds complicated, but the stakes were simple.

1. On the one side, Franken needed to convince the court that as few ballots as possible are valid for there to be no risk of the Democrat losing his lead. Accordingly, his lawyers argued that the standards outlined by law had to be applied as literally as possible, with very little leeway.
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2. On the other side, Coleman needed to convince the court that most of these ballots are valid for there to be a big enough pool for him to catch up. Accordingly, his lawyers argued yesterday for very liberal standards to determine which absentee ballots were valid. In particular, Coleman’s camp made the case that, under the Equal Protection clause, even ballots that are clearly in violation of election statues should be counted if other ballots with the same problem have been mistakenly counted elsewhere in the state. In other words: If it can be shown that a county mistakenly did not throw out the absentee ballot of a voter who was not registered to vote, it would be unfair to throw out the votes of other non-registered voters.

Today, the court ruled that ballots in 12 of the 19 categories should not be counted. (No ruling came on the remaining categories.) The meaning of this is clear: The court has dramatically reduced the number of rejected absentee ballots that might still be counted, and that is a major setback for Coleman.

If you dig in the ruling, the news only gets worse for the Republican. For one, the categories the judges have already ruled to exclude were not necessarily the most technical, nor the most unlikely to be included. In particular, the court decided that ballots whose problem is due to an election official’s error should not be counted. Republicans had good hope that ballots in such categories would be ruled valid. Another blow to Coleman is the court’s ruling that late arriving oversees ballots should not be counted; the GOP was hoping that Coleman would gain votes from military ballots.

Worse still, the court’s ruling went far further than reject 12 categories. It undermined the very grounding of Coleman’s election contest by directly rebutting the Republican’s key arguments:

1. The judges rejected Coleman’s contention that the absentee voting process was shown to be so flawed that the court had to accept a radical remedy. “The facts presented thus far do not show a wholesale disenfranchisement of absentee voters in the 2008 general election,” a judge wrote.
2. Very importantly, the judges all but dismissed Equal Protection-related arguments by writing that a ballot that obviously violates the statutes cannot be includes just because a ballot that was declared valid also violates the statues. “It is not for this court to ignore the unambiguous requirements imposed upon voters attempting to cast an absentee ballot in Minnesota,” the judges wrote. Had the judges sided with Republicans on this issue, it would have had the most dramatic implications.
3. More generally, the judges’ ruling clearly indicates that they will not consider liberal standards for declaring when a ballot has been legally cast, and that the election statutes cannot be dismissed when its intentions are perfectly clear.

Now, we await the judges’ decision on the remaining  categories, some of which could be significant. For instance, the court has yet to decided what should be done if the the absentee ballot application and the ballot itself have different signatures. Yet, other of the remaining categories are very technical, and it is doubtful that a large number of ballots fall in them (for instance, the court has yet to decide what to do if the witness has failed to provide his street address)..

That the judges have yet to make those decisions suggest Coleman can hope that these votes will be included. “We may discover certain additional ballots that were legally cast under relevant law,” the judges wrote. Yet, the judges’ overall refusal to entertain Coleman’s wide-ranging arguments has to be very worrisome to the GOP.

Even if the judges allow Coleman to argue for the inclusion of some of the remaining categories of absentee ballots, it is clear that they will want the Republican to show how the ballot does not violate election statutes - and that is a far higher burden of proof than the one Coleman’s camp was hoping to be asked to meet.