Senate race now in hands of the state Supreme Court

  • Article by: BOB VON STERNBERG , Star Tribune
  • Updated: June 1, 2009 - 1:08 PM

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The Minnesota Supreme Court finally became ground zero this morning in the state's seven-month fight over its vacant U.S. Senate seat.

Five justices heard an hour of arguments on whether problems with absentee ballots justify reversing a lower-court ruling that declared DFLer Al Franken a 312-vote winner over Republican Norm Coleman. The high court was taking up Coleman's appeal of that ruling.

Justice Lorie Gildea cut to the essence of the case while questioning Franken lawyer Marc Elias: "The question here is, who got the most legally cast votes? How can we tell who got the most legally cast votes?"

Justice Alan Page concluded the hearing saying only that a decision would be forthcoming, offering no indication when that might be. However, a ruling is expected from the court sometime this month.

If the court were to uphold the lower-court ruling, that could end the protracted struggle and allow Franken to join the Senate, giving Democrats 60 votes and the ability to fend off Republican filibusters.

A ruling for Coleman wouldn't return him to the Senate, but could keep his hopes alive and delay a final decision for months.

Coleman wants the case returned to trial court, so that the same "substantial compliance" standard that he says was used on election night for absentee ballots is applied to admit thousands more absentee ballots that have so far been rejected.

Coleman attended the hearing, along with his wife, Laurie. Franken was not in the courtroom.

Close questioning

Coleman's side went first, as his attorney Joe Friedberg argued that "12,000 citizens made a good-faith attempt to vote and were disenfranchised." He was referring to the number of absentee ballots that were rejected.

He detailed Coleman's contention that at least 4,400 rejected absentee ballots should be counted, saying that "absent fraud, let's get to the will of the voters."

Coleman's argument, he said, is based on both the due process and equal protection clauses of the U.S. Constitution.

Both Friedberg and Elias were closely questioned by several of the justices, although it was not clear whether that reflected skepticism on their part or simply a desire to get more information on certain aspects of the case.

Court experts have said such questioning could merely reflect a devil's advocate approach, in which judges interrogate the very side they are leaning toward.

Friedberg argued that the three-judge panel that ruled in favor of Franken had overruled decisions made by local elections officials on Election Night. It amounted to "changing the rules after the game was played," he said.

He went on to say that while election officials in the state's metropolitan counties properly counted votes, those in smaller counties didn't -- improperly excluding "thousands" of ballots in the latter counties.

"Depending on where you sleep depends on whether your vote gets counted," he said, calling it "a horrible problem" that resulted in "significant disenfranchisement."

Elias dismissed Friedberg's case. "This is not evidence. It's argument. And this argument was waived," Elias said.

He also said Coleman's legal team never specifically identified the ballots they want counted until late in the process, calling it "a failure to identify the ballots."

Elias attacked Coleman's assertion that elections officials improperly rejected absentee ballots, saying those that were rejected "were the fault [of the voter] -- not the elections official."

He asked the justices to apply state statutes "as the trial court did" when it ruled that Franken had a 312-vote lead. "The court should enforce the law as it's written."

In his rebuttal, Friedman said that the trial court failed to consider thousands of improperly rejected absentee ballots, thereby undermining Coleman's case.

As the challenger, Coleman has the burden of proving that the three-judge panel that heard the trial made sufficient mistakes to overturn their verdict.

Franken hopes the court sweeps aside the appeal and demands he get the election certificate required to take office.

If Coleman loses, he could petition the U.S. Supreme Court, which isn't certain to take the case.

Speaking to reporters afterward, Coleman wouldn’t talk about what lies ahead for his case.
“Let’s see what this court does,” he said when asked if he’d pursue other legal options if he loses at this level. “At this point my firm hope and fervent hope is to enfranchise over 4,000 more Minnesotans.”

An outside view

Richard Hasen, an elections expert at Loyola Law School in Los Angeles, said he thought the justices posed much tougher questions to Coleman than Franken. That's not a surprise, he said, adding that he thought Friedberg did a good job for Coleman in answering questions directly and not being afraid to concede points he couldn't win.

"The reason Coleman is having a harder time is that he's got a tougher road to success," Hasen said. He said that's because the Supreme Court will defer to the factual findings of the trial court, which found for Franken.

And even if Coleman succeeded in convincing the justices about varying standards, Hasen said, he would still have to show there were enough problems to change the outcome of the election.

Hasen said that, based on the oral argument, he wouldn't be surprised to see a unanimous decision for Franken within two weeks.

After the hearing, Friedberg reiterated that "smaller counties, even though they had less resources, were much more adamant about strictly enforcing the law" than bigger counties.

Elias told reporters that he thought the justices obviously had studied the issues. He said he didn't read anything into the questions that were asked, and added that he thought the court's ruling "should bring us to the end of the state court process ... and the need for press conferences like this."

Staff writer Kevin Duchschere and the Associated Press contributed to this story.


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    Five justices of the Minnesota Supreme Court will hear arguments today about reversing a lower-court ruling that declared DFLer Al Franken a 312-vote winner over Republican Norm Coleman.

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