Norm Coleman's legal team urged the Minnesota Supreme Court on Thursday to take dramatic action in the U.S. Senate dispute by throwing out a lower-court verdict favoring Al Franken and ordering the counting of thousands of additional absentee ballots.
In a 50-page document detailing his arguments for appeal, lawyers for Republican Coleman called on the high court to overrule the unanimous ruling of a three-judge trial panel that DFLer Franken finished 312 votes ahead in the now six-month-old election.
The trial court applied a stricter standard for counting thousands of disputed absentee ballots than was used on Election Day, said Ben Ginsberg, Coleman's legal spokesman.
As a consequence, Ginsberg said, two constitutional principles were violated -- equal protection, because similar ballots were counted differently, and due process, because the court imposed different rules to count the ballots after the election was over.
The remedy, the Coleman brief says, is either to take out a proportion of already-counted ballots that the trial court's stricter standard has made illegal, or to count additional ballots -- at least 4,900 -- similar to ones included by local officials on Election Day.
A third remedy mentioned is that the court throw out the election as unable to produce a winner, although state law doesn't provide for a new election.
Ginsberg said Coleman's lawyers are confident the argument will work because the state Supreme Court has broader authority than either the state Canvassing Board, which oversaw the recount, or the trial court, which presided over Coleman's subsequent challenge, called a contest.
"The Supreme Court, as the highest court in the state, has the obvious authority ... to look at all this and order the contest court to look at these things," Ginsberg said.
A spokesman for Franken's lawyers said they would have no immediate response.
At least one outside observer said he thought that Coleman's brief had strengths, but that the proposed remedy was problematic.
Franken's reply brief is due by May 11, followed by Coleman's response on May 15. The case will be argued before the high court on June 1.
Coleman's arguments
In its ruling last month, the three-judge panel dismissed Coleman's central argument that the election and its aftermath were fraught with systemic errors that made the results invalid.
But the Coleman brief makes several basic arguments contending that the trial judges erred. It claims that the court blocked critical evidence, that it declined to inspect precincts where votes were alleged to have been counted twice, and that it improperly allowed missing ballots to be included in the count.
But the heart of Coleman's case rests in the constitutional questions it raises. First, he says, the panel imposed the strict standard for including additional ballots instead of applying the looser "substantial compliance" standard actually used in many polling places on Election Day.
Not only that, but the court left in the count absentee ballots that suddenly became illegal under the strict standard it was applying, the brief says.
Ginsberg said that the brief focuses on correcting the strict standard. "We argue it's wrong because it wasn't applied on Election Day, and it also runs counter to Minnesota rulings in the past," he said.
The trial court action that Coleman targets for reversal is a Feb. 13 ruling that stated which ballots could or couldn't be counted under state law.
The brief includes examples of nine requirements the trial judges insisted be met for counting absentee ballots -- for instance, that the voter must have a witness who is a registered voter -- and then cites testimony and evidence from the trial to show that those rules weren't always followed around the state.
The best remedy, Ginsberg said, is to add rejected absentee ballots to the count that are identical to the ones already in the mix.
The number of such ballots that Coleman wants counted ranges up to 4,900, Ginsberg said.
Ginsberg said that the Supreme Court could decide to count the ballots itself, but that it was more likely to return the case to the trial court with specific orders on which votes to count.
He said that, if the court chose to take out already-counted ballots from the tally, it would determine the number of illegal votes cast in each precinct and then remove that number from the candidates' tallies, based on the proportion of the votes they received there.
Outside views
Richard Hasen, an expert on election law at Loyola Law School in Los Angeles, wrote on his blog Thursday that the Coleman arguments didn't surprise him, and that although they are not frivolous points he continues to think the Supreme Court won't buy the equal protection argument. Arguing to change the law at this point is a tough sell, Hasen said, and if it worked, it would give Franken his own basis for an equal protection appeal.
Guy-Uriel Charles, an election law expert at Duke University, said he thought Coleman's problem was his proposed remedy. To get the Supreme Court to use a substantial-compliance standard in counting absentee ballots, he said, Coleman is asking the court to overlook the strict standard already in state law.
"What's strong about the brief are the facts about disparate treatment by election officials in the counties," he said. "But even if you take those facts seriously, there's not an appropriate remedy. Their remedy is to ignore the statute as written.
"They did the best they could -- there are parts of the brief that are quite clever -- but the fundamental problem remains: assuming you're right, what can we do about this? And that is a roadblock that I just don't think they can overcome."
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