High court: Franken can't join Senate yet

The justices said the legal challenge has to run its course before certification.

Norm Coleman attorney Jim Langdon
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Norm Coleman attorney Jim Langdon argues against an Al Franken motion to dismiss during the Senate vote recount trial Friday.

Photo: Jim Mone, Associated Press

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The Minnesota Supreme Court on Friday refused Al Franken's request to be immediately certified as winner of the U.S. Senate election, saying that step must await a final resolution of the long-running recount trial and possible appeals.

But even as the high court issued its ruling, Franken's lawyers received a sympathetic hearing in their attempt to throw out Republican Norm Coleman's legal challenge of Franken's 225-vote recount margin.

In a 5-0 decision, the Supreme Court ruled that DFLer Franken was not entitled to be certified as the election winner until the legal contest has made its way through the state courts. The justices said state law blocks an election certificate from being issued until then.

The court also said federal law does not require states to certify senators by the time a new term begins in January. Moreover, they said, the Senate can seat Franken without a certification anyway.

Even as the opinion was being released, Franken attorney Marc Elias was telling the judges hearing the recount trial in St. Paul that Coleman had failed to prove that enough absentee ballots had been wrongly rejected for him to win. "Whether it is nine, whether it is 19, whether it is 99, it is far fewer than 225," Elias said.

But it was Coleman attorney James Langdon whom the three judges peppered with questions, asking him why thousands more ballots should be counted when they were already examined several times before the trial began.

Langdon replied: Because different eyes used different standards in determining whether like ballots should be counted. Not only that, he said, but the length of time it has taken to update the state's voter registration database has left his side without the voter information it needs to determine whether those ballots should be counted.

Langdon said that the Coleman side had shown, by a preponderance of the evidence, that thousands of Minnesota absentee ballot voters had been disenfranchised.

He added that his side had presented enough testimony and documents to show there were still "a substantial number" of rejected absentee ballots that were legally cast and should now be counted -- at least 1,725.

But Elias said that before Coleman's team rested its case this week, it had offered sufficient evidence to support the counting of only nine additional ballots. If Coleman can't find enough legally cast ballots to topple Franken, Elias said, his case ought to be dismissed.

"They have failed to prove more than a handful of their ballots that they have proffered were wrongfully rejected," Elias said. "That result is not a result of the failure of the Minnesota electoral system. That is not a failure of the secretary of state's office. That is nothing more than a failure of [Coleman's lawyers] to put on the case that they should have, and offer the proof that they must."

Duplicate ballots

Another motion heard Friday dealt with Coleman's contention that some double-counting of ballots occurred during the hand recount, primarily in Franken strongholds.

For the recount, the campaigns and Secretary of State Mark Ritchie agreed that in cases when duplicate ballots had been made for originals that couldn't be fed into voting machines, the originals would be tallied.

Coleman attorney Joe Friedberg said Friday that both sides had agreed to do so in case the voter's intent couldn't be discerned from the duplicate ballot; but that proved not to be a problem, he said, and the procedure only led to "a larger mess" that resulted in some double counting of originals and duplicates. The remedy, Friedberg said, is to recount duplicate ballots in about 20 precincts, including 10 in Minneapolis.

But Franken attorney David Lillehaug said the Coleman campaign had insisted on counting originals throughout the recount and now had changed its mind even though there was little evidence of double-counting.

"We think the agreement should be enforced," Lillehaug said.

"What this case is about is the Minnesota voter and getting it right," Friedberg replied.

Certification ruling

Five Supreme Court justices joined in the opinion denying Franken's bid to have Ritchie and Gov. Tim Pawlenty issue him a certificate; they had refused, citing state law. Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson recused themselves because they had belonged to the state Canvassing Board that oversaw the recount.

In its opinion, the court said that neither state nor federal law required that Minnesota issue an election certificate before the legal contest is over. Moreover, it said, state law plainly says that state courts must decide an election contest before a winner can be certified.

Elias was philosophical in his reaction to the decision. "We appreciated them hearing the case as quickly as they did and considering it as thoughtfully as they did," Elias said. "Obviously, we had hoped for a different result, but we accept the ruling of the Supreme Court and we move forward."

Coleman attorney Ben Ginsberg called it "a big victory" for the Republican. "It throws a bit of a wrench into the tactics that [Senate] Majority Leader [Harry] Reid and [Democratic New York Sen.] Chuck Schumer were trying to do to seat Al Franken," he said. "I think, correctly, that leaves the decision here in Minnesota for Minnesotans."

Kevin Duchschere • 651-292-0164

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Norm Coleman attorney Jim Langdon