Norm Coleman's chance of winning a recount appear to be diminishing, but he could be laying the groundwork for an appeal.
The Senate election trial is a month old, enough time to ask: Does Norm Coleman have a chance of winning?
A series of court rulings have dealt the Republican long odds for overturning DFLer Al Franken's 225-vote lead. The three judges hearing the case have been only partly receptive to Coleman's bid to expand the field of ballots as he seeks more votes, and they brushed aside his claim of systemic problems with Minnesota elections.
Coleman once wanted to examine up to 11,000 rejected absentee ballots in hope that enough might eventually be opened and counted to help him overtake Franken. Now he's looking at opening perhaps a couple of thousand ballots. And the number could turn out to be even smaller.
"It's very hard, the way it's set up right now, for him to be able to win," said David Schultz, a Hamline University law professor specializing in elections.
"Very slim," was how Duke University law Prof. Guy-Uriel Charles characterized Coleman's current chances.
"Coleman is in a bubble running out of oxygen," said Lawrence Jacobs, a University of Minnesota political science professor.
Coleman legal spokesman Ben Ginsberg reiterated late Friday that the campaign believes the candidate still can win enough votes from the current pool of rejected absentee ballots to win.
But the three experts who have been following the trial say Coleman also appears to be playing beyond the daily courtroom action and laying the groundwork for an appeal to the Minnesota Supreme Court or federal courts.
Critical comments are rare
Last week, he asked the three-judge panel to reconsider its Feb. 13 decision narrowing the types of rejected absentee ballots that might be reviewed and eventually counted. When the judges refused, Ginsberg accused the judges of creating a "legal quagmire" in which ballots have been treated differently and questioned whether the trial would produce a "legitimate result."
It's rare for lawyers to criticize judges hearing their cases, prompting speculation that the broadside was intended to reassure conservative supporters whose money Coleman needs to wage an expensive legal battle before the panel and possibly in higher courts.
On Friday, Politico reported that the Republican National Committee has transferred $250,000 to the Minnesota Republican Party to help Coleman with his legal fees. And a funding pitch posted on YouTube last week featured key GOP senators asking viewers to donate money to the legal battle. "Anything you can do to help Norm financially to make sure that he can tell his story before the court is much appreciated," said Sen. Lindsey Graham, R-S.C.
Schultz said the YouTube pitch and Ginsberg's remarks "really suggest that an appeal is very likely at this point. Coleman needs more money. He wants the boat to go forward, and, more importantly, Coleman, if he loses this one, is going to have to pay court costs. So he has to worry about coming up with the money, not just for his side, but for the other side."
Coleman's federal recount committee received $459,515 through the end of 2008, with business owners and executives accounting for about one in four contributors. Franken's recount fund pulled in $1.9 million through the end of the year, with actors Michael Douglas and Robert DeNiro and court novelist John Grisham among the contributors. Both candidates raised additional millions of dollars in late 2008 through their regular campaign committees that can be tapped for the legal battle.
Ginsberg on Friday rejected any suggestion that the highly publicized criticism of the court rulings was intended in part to bolster support for Coleman.
Schultz, Jacobs and Charles say the current math works against Coleman. Ginsberg has said about 3,300 rejected absentee ballots might still be in play under the panel's ruling, with perhaps 2,000 to 2,500 ultimately being opened.
"On the one hand, 225 votes out of 2.9 million cast is puny, but when you have to make up 225 votes out of perhaps 2,000, it becomes much more daunting," Jacobs said.
Most of the rejected ballots that Coleman wants reconsidered are from Republican-leaning areas, including many that went for him by more than 10 percentage points in November. But Jacobs and others say prospects of him winning by large enough margins to overtake Franken are slim.
Moreover, Franken has his own list of votes he wants the court to consider -- 804 ballots he's identified as possibly being wrongly rejected. An earlier version of the list was weighted toward Democratic-leaning areas favorable to him.
"I think he's in an increasingly desperate situation," Jacobs said of Coleman. "You've got a situation where the pool of voters that Coleman is hoping to generate a net gain of 225 from is shrinking, and at the same time, the Franken lead appears to be growing."
In that context, Coleman on Friday even suggested reviewing all absentee ballots -- including those that have been accepted.
Coleman's lawyers have argued that varying practices by county officials for counting absentee ballots could pose a violation of the equal protection clause of the U.S. Constitution. They've emphasized that the presiding judges have excluded categories of rejected absentee ballots from being reconsidered, some of them similar to ones that the state Canvassing Board approved in January.
"It is changing the rules of the game after the game has been played, and that, as a matter of law and fundamental fairness, is something you cannot do," said Ginsberg.
Schultz sees that as a sign of an alternative strategy.
"They may be saying at this point, 'Let's just get through this stage of the trial. ... Let's get a decision, end it and then let's go on for an appeal," Schultz said. "I don't know how an appeals court will handle this one. I don't think [Coleman's lawyers] have an impossible case. I do think there is a contradiction here."
Charles said it appears that Coleman's lawyers intend to "set that issue up as cleanly and clearly possible." He theorized that they'd argue that "the only valid votes are votes that comply with Minnesota law, but it's clearly the case that there have been votes that are invalid that have been included in the count and the court has refused to look at those."
Still, Charles thinks the chance of Coleman prevailing on appeal to the Minnesota Supreme Court is slim unless he can demonstrate "egregious" problems, not more typical error rates.
Jacobs says that based on current evidence, an appeal to federal or state courts would be unlikely to succeed, and that criticism of the panel could work against Coleman.
"There's a kind of arrogance and disrespect that is not going to sit well with Minnesota judges," he said.
Pat Doyle • 651-222-1210