State's high court may not be the last word in recount

Facing almost certain defeat in the Senate election trial, Norm Coleman is preparing to take his fight to the Minnesota Supreme Court.

But would that court's ruling be the final judicial word?

Maybe not. An intriguing possibility that could further prolong the Minnesota election dispute is an additional appeal to federal courts -- something supporters have repeatedly urged Coleman to consider and he has refused to rule out.

While some election law experts say it's unlikely that Coleman, a Republican, could win in federal court, his party might have much to gain. A federal challenge could leave a Minnesota U.S. Senate seat vacant for another six months or more, depriving Democrats of a vote needed to pass some of President Obama's agenda in the event of GOP filibusters.

The success of such a "scorched-earth" strategy, as one political scientist dubs a federal appeal, depends heavily on the definition of state courts.

The Minnesota Supreme Court has ruled that a Senate race winner can't be certified by Gov. Tim Pawlenty and Secretary of State Mark Ritchie "until the state courts have finally decided the election contest," as the trial was called.

If a request were made for a review by the U.S. Supreme Court, the question would be whether that "is part of that 'state contest' process so as to delay the issuance of the certificate," wrote Richard Hasen, an election law expert and professor at Loyola Law School in Los Angeles, in a recent blog for the American Constitution Society.

However, Hasen said it's likely that the U.S. Supreme Court would agree to fast-track its decision on the review request.

The Minnesota Supreme Court would determine whether to delay an election certificate until the U.S. Supreme Court decided whether to intervene in the case. Some think Coleman will ask the state high court to do just that.

"I think that's a fair strategy, a strategy the Coleman camp will likely pursue," said Guy-Uriel Charles, an expert on election law at Duke University. Still, Charles thinks it would fail because Minnesota law gives the state justices authority to order a certificate issued while a federal appeal is ongoing.

Pawlenty, a Republican, has alluded to the possibility that a federal appeal could delay certification of a winner. But Ritchie, a DFLer, has defined state contest to mean a fight that's literally going on in state courts.

No perfect elections

"I think it's very unlikely the U.S. Supreme Court is going to take the case," said Edward Foley, a professor of election law at Ohio State University who has followed the trial closely. Even though the U.S. Supreme Court intervened in the 2000 presidential election, "my instinct on this is they intervened ... because it was the presidency," Foley said. "They're not sure if they should have intervened, after all."

Hasen also thinks the nation's highest court would refuse to take the case, although much depends on how the state court rules.

He said Coleman probably would claim that election officials applied inconsistent standards in deciding which absentee ballots to count, denying him his right to equal protection under the Constitution.

But that's like saying that because some elections officials included illegally cast votes in the final tally, "it's an equal protection violation to not count the illegal votes in the rest of the state."

"It is a tough argument to make," Hasen said. "It seems to compound errors."

University of Minnesota political science professor Larry Jacobs agrees.

"I think the key standard here will be whether there was systematic bias that altered the outcome," said Jacobs, who called a federal appeal a "scorched earth" strategy, with little chance of success. "There is deference by the federal courts to the state courts with regard to state and local elections, unless there are egregious or large constitutional issues like racism."

The three-judge panel that heard the Senate trial wrote in an order that "there is no systemic problem of disenfranchisement in the state's election system."

State high court comes first

In the meantime, there is the Minnesota Supreme Court to reckon with. Can Coleman win there?

Charles said the trial court panel was careful to rule that absentee ballots must meet the strict requirements of Minnesota law to be counted, rather than adopt a more-lenient standard.

"If they had done that, it would have opened them up to the criticism that they're adopting a limitless standard of their own that doesn't have a basis in Minnesota law," he said. "Had they said they were going to interpret the spirit of the law, the losing side could argue they weren't generous enough."

Still, Charles said Coleman has a valid equal-protection claim that the panel rejected ballots that were similar to those tallied during the recount.

"I think it's a serious argument -- I'm probably one of the few people who thinks that," he said. "This is not the way we would design a system."

But the Minnesota Supreme Court would have no good remedies for the problem, Charles said. It can't reject the invalid ballots already tallied in the recount, and would be leery of counting new invalid ballots to be consistent.

University of St. Thomas law professor Michael Paulsen is among a minority who believe a special election may be necessary. But Paulsen says the Minnesota Supreme Court justices would have to acknowledge that an earlier ruling by them contributed to election problems -- "a very iffy proposition."

Should the state Supreme Court rule in Coleman's favor, it suddenly would be Franken who would have to consider a federal court appeal. But he might well appeal instead directly to the Senate itself, which has the ultimate authority over seating its members -- a point Franken's lawyers have emphasized in several previous motions.