Ordinarily, I'm a big fan of litigation. I teach law students civil procedure -- the rules involved in suing people. I do not teach alternative dispute resolution; that's for the Kumbayah crowd. There's nothing wrong with suing, and if you don't believe me, wait until you've been mistreated and are looking for justice. It's a civilized method of resolving disputes, even election disputes, and is certainly superior to the guns and grenades used in some countries. So say it loud, say it proud: Litigation is good ... ordinarily.
In the seemingly endless U.S. Senate election in Minnesota, litigation may not be so good. Norm Coleman's camp is realizing what many election lawyers have long appreciated. Once the count is certified by the Canvassing Board and a candidate is declared the leader, even by a mere 225 votes out of 3 million, an election contest lawsuit is a useful strategy only when the electoral margin is extremely narrow or when large-scale mistakes in vote-counting has been made. A margin of 225 votes is much too wide to overcome unless there have been clear large-scale mistakes that consistently prejudiced one candidate as against the other candidate.
The Coleman camp put up a good fight. It embarked on a wide-ranging expedition for consistent mistakes in ballot treatment. It presented evidence that different local officials may have applied different standards for deciding when to count particular ballots, especially absentee ballots.
This is a variation of the equal protection argument that you have heard so much about, and it is not a trivial point. Because the possibly illegal ballots are now commingled with the legal ballots, they cannot be removed from the count; we don't know how many or which ones they are. The Coleman camp's solution is to count other ballots that are not valid under Minnesota law simply because a speculative number of illegal ballots may have been included in the count. But as judges and legal academics like to say, that argument proves too much.
Elections in the United States are extremely decentralized affairs in which there are bound to be inconsistent treatments of similarly situated voters. If accepted, this understanding of equal protection -- if you don't apply the law in one case you must not apply it in all other cases -- would be great for election lawyers but bad for American democracy.
Unfortunately for Coleman, his prospects always depended upon a miracle. He wanted before and wants now more ballots to be counted. But the more ballots that are counted -- by election officials, the Canvassing Board and the trial court -- the better Al Franken does. Go figure.
A good lawyer should know when further litigation is fruitless, and a good politician should abide by the same guiding principle. Coleman is a good politician, though as a consequence of this prolonged litigation his formerly bright future in state and national politics is increasingly less bright.
He has a legal right to pursue this lawsuit to the bitter end. But he has taken his best shots and consistently has lost ground. Further appeals will only delay the inevitable conclusion: Al Franken has won the seat. Coleman should send the litigators home and call in the alternative dispute resolution people. It's Kumbayah time.
Guy-Uriel E. Charles is the Russell M. & Elizabeth M. Bennett Professor of Law at the University of Minnesota Law School and the founder of the Center on Law and Politics. He is currently a visiting professor at Duke University School of Law.