Senate recount: A Supreme Court grilling

Five justices pressed lawyers for Franken and Coleman with tough questions about absentee ballots and state law.

All that remains is a ruling.

A day after publicly grilling lawyers for Norm Coleman and Al Franken in a hearing scrutinized by political pundits and players nationwide, the Minnesota Supreme Court is back behind closed doors, deliberating on a decision that could lead DFLer Franken to the U.S. Senate or give Republican Coleman another chance to stop him.

Monday's vigorous interrogations left no decisive signals about the justices' thinking. They challenged the arguments of both candidates, but leveled their toughest questions at a lawyer for Coleman, who is appealing a lower court verdict awarding Minnesota's disputed Senate election to Franken.

Coleman attorney Joe Friedberg told the justices that thousands more rejected absentee ballots should be tallied under looser standards that were used by many local officials on Election Day. He said local practices led to counting ballots in Democratic areas that were similar to those rejected in Republican areas applying a stricter standard.

But several justices suggested that Coleman's team had failed to provide proof that such practices were widespread.

"You're offering little more than ... Coleman's theory of the case but no concrete evidence to back it up," said Associate Justice Christopher Dietzen.

Franken lawyer Marc Elias also came in for some tough questions. Associate Justice Lorie Gildea asked how he could be confident about the outcome given that some of the ballots counted on Election Day apparently didn't meet the requirements of Minnesota law.

"If we're suppose to decide who got the most legally cast votes and there is evidence that suggests that illegally cast ballots were accepted ... how can we tell who got the most legally cast votes?" Gildea asked.

Elias responded that Coleman failed to prove how many ballots were illegally cast or their significance.

Five justices heard the arguments in the Minnesota Judicial Center. Two court members had withdrawn from the case because they were on the state Canvassing Board that oversaw a recount of the election.

Coleman maintains that the three-judge panel that conducted an election trial erred when it unanimously ruled in April that Franken won by 312 votes. Franken did not attend Monday's arguments, but Coleman did. He declined to say whether he would appeal a loss to the U.S. Supreme Court.

Franken has asked the state Supreme Court to affirm the panel's ruling and order Gov. Tim Pawlenty and Secretary of State Mark Ritchie to certify him the winner.

It is unclear when the Supreme Court will rule.

Skepticism detected

Coleman is asking the court to reverse the trial panel's decision and order it to reconsider 4,400 absentee ballots from among those that were rejected by local election officials.

In addition to arguing that counties applied different standards when counting ballots, Friedberg criticized the panel for excluding absentee ballots that weren't proven to meet the strict requirements of Minnesota law. Coleman says the rejected ballots should be presumed legal unless there is evidence to the contrary.

Coleman has the burden of convincing the justices that the lower court made a mistake. They interrupted Friedberg often during his arguments to challenge his claims.

Such questioning could merely reflect a devil's advocate approach, in which judges challenge the side they are leaning toward. But election law experts who have followed the case and listened to Monday's arguments said the justices' questioning appeared to reflect deep skepticism toward Coleman's claims.

Guy-Uriel Charles, a Duke University law professor, said he didn't think Coleman convinced the justices that state election law was flawed enough to justify loosening statutory guidelines to let in more ballots.

"What's remarkable about the whole oral argument is that there were very few questions, if any, asked on what to do next -- what is the standard that you want us to apply," Charles said. He predicted a unanimous ruling for Franken toward the end of June.

"There's no question that Coleman's side got much tougher questions than Franken's side, and based upon oral argument I would not be surprised to see a unanimous decision in favor of Franken," said Richard Hasen, an election expert at Loyola Law School in Los Angeles.

Edward Foley, an election law expert at Ohio State University, said the justices posed so many questions about whether Coleman had failed to prove his case that they might rule against him for lack of evidence.

Friedberg began his case by referring to thousands of "citizens who made good-faith efforts to vote" but whose ballots were rejected by local officials.

Justice Alan Page interrupted less than a minute into the argument.

"Did these ... citizens comply with the absentee voter requirements?" Page asked, referring to state law requiring conditions for such voting.

"Many of them did substantially," Friedberg replied.

"Substantially?" Page asked. "What does that mean?"

Friedberg said they followed local criteria for ballots.

"Haven't we said in the past that the statutory requirements are mandatory in respect to the voter's conduct?" Page asked.

Friedberg said there is legal precedent for accepting flawed ballots absent evidence of fraud or bad faith.

Coleman's case is built largely on the argument that varying practices by local election officials and rulings by the panel violated constitutional rights of equal protection and due process.

Associate Justice Paul Anderson joined Dietzen in criticizing Coleman's case for lacking proof, saying he offered "basically just lists of names" instead of testimony to back up his claims. "I am very bothered by your offer of proof," Anderson said.

'There is some chaos'

The justices also pushed Elias to justify why similar ballots were treated differently by local officials.

Elias said counties had different technology and personnel and needed "flexibility to allow elections to work."

Gildea remarked that it sounded like he was defending the more relaxed standard -- "substantial compliance" -- pushed by Friedberg.

But Elias said he wasn't arguing for a relaxed standard, only "reasonable discretion" by local authorities on how to enforce the statute.

Anderson asked Elias, "Were any illegally cast absentee ballots counted and included in the vote total?"

Elias said it sometimes happens, "but that has never been the standard."

Anderson told Elias that Coleman had "shown that there is some chaos" in absentee voting practices. "Tell me why they have not shown us enough," he said.

Elias said Coleman failed to identify specific ballots to support his contention of widespread trouble.

pdoyle@startribune.com • 651-222-1210 kduchschere@startribune.com • 651-292-0164

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