DFLer Al Franken on Monday defended his victory in the U.S. Senate election trial, telling the Minnesota Supreme Court there is no evidence that problems with absentee voting affected the outcome of the race.
Responding to Republican Norm Coleman's appeal to the high court, Franken denied that variations in the way counties handled absentee ballots deprived some voters of their constitutional right of equal protection. Franken said the variations were "reasonable" and "minor" and not unconstitutional.
"The different procedures were consistent with the different resources, personnel and technology available to each county and city," Franken's camp said.
Franken also said Coleman's lawyers never adequately raised a constitutional due process argument in seven weeks of testimony during the trial.
Coleman claimed a due process violation during closing arguments, saying the three-judge panel that heard the trial imposed different standards for counting ballots than were used during the election and recount.
Franken said Coleman should have raised the issue in a more serious manner earlier in the trial if he wanted it to be considered.
Coleman spokesman Tom Erickson did not have an immediate reaction to the Franken argument, contained in a document filed Monday with the state Supreme Court. Coleman is expected to file a rebuttal this week. Oral arguments are scheduled for June 1.
The three-judge panel ruled unanimously on April 13 in favor of Franken and said he was entitled to an election certificate to be seated in the Senate.
In the document filed Monday, Franken's lawyers asked the justices to uphold the panel's ruling and order Gov. Tim Pawlenty and Secretary of State Mark Ritchie to issue an election certificate promptly.
The high court earlier ruled that an election certificate could not be issued until after the state court case. But Pawlenty has left open the possibility that he might not issue a certificate if a federal appeal is ongoing.
An elections law expert who has followed the case said it's possible the Minnesota Supreme Court will take a middle road.
"It could well be that if the state Supreme Court sides with Franken, it will order the issuance of a certificate after a short time, enough time for Coleman to seek a stay from the U.S. Supreme Court," wrote Richard Hasen, a professor at Loyola Law School in Los Angeles, in his Election Law blog.
Over the weekend, the chairman of the Republican National Committee, Michael Steele, said Coleman would appeal to the U.S. Supreme Court if he loses at the state level. "This does not end until there's a final ruling that speaks to whether or not those votes that have not been counted should be counted," Steele told the National Journal. "And Norm Coleman will not, will not jump out of this race before that."
For his part, Coleman hasn't said whether he would pursue his effort into the federal courts. He also hasn't ruled out such a move.
Focus on absentee ballots
At the state level, Coleman is appealing a series of orders by the trial panel that ultimately gave Franken a 312-vote lead. Franken had led by 225 votes after the recount.
Coleman's appeal focuses mostly on absentee ballots, arguing that at least 4,900 that were excluded by the panel during the trial should be counted. Those ballots, he said, are similar to flawed ballots counted by local officials on Election Day.
But Franken countered that Coleman failed to prove that most of those ballots were cast by registered voters and said the panel wasn't authorized to open and count absentee ballots that don't comply with Minnesota law.
Franken defended the panel's decision requiring absentee voters to comply strictly with the requirements of Minnesota election law, saying absentee voting is a privilege and not a right like voting in person.
While Coleman said some counties allowed the kinds of ballots that others rejected -- sometimes in error -- Franken said the variations were well within the range accepted by courts. "If ... minor variations in election procedures or minor errors ... were held to be a Constitutional wrong, it would be virtually impossible for a state to conduct an election administered at the precinct and county level," the Franken document said.
He cited court decisions that said an election law infraction "is not fatal" in the absence of proof that it affected the outcome or was intentionally discriminatory or the result of "fraud or bad faith."
He noted that the panel found Coleman "failed to prove that any alleged irregularity actually affected the election's outcome."
Hasen said in an interview that the argument could be crucial to the Supreme Court. He said it could conclude that Coleman "hasn't demonstrated that there were problems of such magnitude ... that would require sending it back to the lower court for additional counting or for ordering a new election."
While absentee ballots are at the center of the dispute, Franken also rebutted a Coleman claim that the DFLer benefited when 132 ballots disappeared from a Minneapolis precinct and officials relied on Election Day machine totals for the recount.
The document disputes Coleman's claim that problems with the Senate election were comparable to those in the 2000 presidential election, in which the U.S. Supreme Court intervened on grounds of equal protection.
"The cases remain factually distinct on numerous, significant grounds," the document said.
Election and constitutional law experts Fred Morrison of the University of Minnesota, Guy-Uriel Charles of Duke University Law School and Hasen said Monday that it's unlikely Coleman will prevail before the state Supreme Court because he hasn't proven violation of constitutional rights or state elections law.
"I thought Coleman had an uphill battle, and it's only reinforced by my reading of the Franken brief," Hasen said.
Pat Doyle • 651-222-1210