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Continued: Coleman files appeal to Supreme Court

  • Article by: KEVIN DUCHSCHERE , Star Tribune
  • Last update: April 21, 2009 - 11:55 AM

Ignoring opponents' demands that he concede, Norm Coleman told the Minnesota Supreme Court Monday that a lower court got it all wrong when it ruled that Al Franken won the 2008 U.S. Senate election.

"The Minnesota tradition in law [is] to enfranchise people, and their decision disenfranchises many Minnesotans whose votes have been wrongly rejected," said Coleman legal spokesman Ben Ginsberg.

Republican Coleman filed notice of his appeal to the state's high court late Monday, asserting in a seven-page statement that the judges who awarded the election last week to DFLer Franken by 312 votes had deprived thousands of absentee voters of their constitutional rights to have their ballots counted.

The judges did that, Coleman claims, by rejecting evidence that different standards were used across the state in counting or rejecting identical absentee ballots. They also refused to adopt a single standard to determine which ballots should be counted, he says.

In addition, Coleman argues that the judges failed to look into reports that some absentee ballots were counted twice and allowed 132 Minneapolis ballots to be counted even though they went missing during the recount.

But the heart of the appeal rests with the constitutional questions posed by the treatment of absentee ballots, Ginsberg said.

"Where one person's ballot has counted and an identical ballot has not been counted because different jurisdictions treated it differently, there is a principle at play here," he said.

Ginsberg said there's good reason to believe that Coleman can win enough of the disputed ballots to overtake Franken.

However, Franken attorney Marc Elias said Coleman was refusing to accept the reality that the same arguments already had been tried and fallen short. Contrary to what Coleman's lawyers insist, he said, the claims listed in the appeal seek to have votes taken out rather than added to the count.

"They came out the other end and not only did they not prevail, but in fact Al Franken's lead grew by 87 votes. ... What we have now is the death throes of the Coleman legal effort," Elias said.

The difference, said Ginsberg and Coleman lawyer James Langdon, is that the state Supreme Court won't feel as constrained as the trial court in considering the constitutional issues of equal protection and due process.

Langdon said the state's high court will feel much freer to reject older Supreme Court precedents that the three judges who heard the recount trial may have been reluctant to touch. Said Ginsberg: "Appellate courts generally have a broader view of the law."

Langdon said he expects that oral arguments will be heard by the Supreme Court any time from early May to mid-June, the kind of fast track that's required for the case by state law, he said. Coleman's lawyers expect the court to tell them when they must file their brief, a detailed exposition of their case.

Franken's attorneys will file a motion today proposing a deadline of Monday for the Coleman brief and May 2 for their own brief, Elias said, with arguments to follow soon thereafter.

For the appeal, Coleman will rely on the same lawyers he used during the seven-week recount trial: noted defense attorney Joe Friedberg, backed by Ginsberg, a Washington, D.C., attorney who worked for George W. Bush during the 2000 Florida recount, and local attorneys Langdon, Fritz Knaak and Tony Trimble.

No changes are expected on the Franken team, which includes Elias and Kevin Hamilton, based in Washington, D.C. and Seattle, respectively, and Minneapolis lawyer David Lillehaug.

Franken names director

In another action Monday, Franken leveraged his status as senator-in-waiting by naming a longtime DFL activist to serve as his state director -- conditioned on whether he gets an election certificate.

Alana Petersen, who has worked on Rep. James Oberstar's Minnesota staff for the last five years, will take charge of in-state constituent services "to ensure we hit the ground running on Day One," Franken said in a statement.

Those services, ordinarily split between two senators, have been handled solely by DFL Sen. Amy Klobuchar's staff since January, when Coleman decided to contest the recount in court.

Petersen, 39, of Pine City, said that she was "thrilled" to take the job and that Franken will "be the kind of senator who works hard on behalf of every Minnesotan."

Franken spokeswoman Jess McIntosh emphasized that Petersen hasn't actually been hired because Franken hasn't been officially certified as the winner of the Senate election.

State Republican Party Chairman Ron Carey, in a statement, said Franken was "thumbing his nose at the Minnesota Supreme Court."

Staff writer Bob von Sternberg contributed to this story.

Kevin Duchschere • 651-292-0164

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