ST. PAUL, Minn. – Dealt a stinging loss in his election trial, Republican Norm Coleman must overcome some daunting challenges to find his way back to the U.S. Senate.
He’ll have to convince the Minnesota Supreme Court that three veteran trial judges botched his lawsuit challenging Democrat Al Franken’s lead — now at 312 votes — and hope justices order more rejected absentee ballots to be counted. Then, Coleman needs those ballots to break disproportionately for him to vault him past Franken.
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The race has dragged through a statewide recount and a trial that formally ended Monday. In an interview Tuesday, Coleman said his lawyers would finish the appeal notice this weekend and file it next week, near the end of their 10-day window.
“This isn’t about me. And it shouldn’t even be about Al Franken,” Coleman said. “It is about the rights of Minnesotans to have votes counted so that when all is said and done whoever is elected can have the confidence of the people that they got the most legally cast votes.”
In its ruling Monday, a three-judge panel rejected Coleman’s claim that counting flaws cost him re-election. His chief argument was that thousands of absentee ballots that did not get counted should have been, a violation of the standard of equal protection.
Coleman said 4,400 absentee ballots from Republican-leaning areas were held to a higher threshold than those counted elsewhere. “We’re not talking about counting a vote for somebody who’s dead. We’re not talking about counting a ballot for somebody who voted before. We’re not talking about counting a vote for somebody who’s not registered,” he said.
Franken attorney Marc Elias said the Coleman team missed its chance to get more ballots counted.
“They had seven weeks to put on their evidence to support those ballots, and they simply failed to do so,” Elias said.
Ohio State University election law scholar Edward Foley said Coleman has multiple obstacles to clear.
“Even if Coleman were to prevail on the legal equal protection argument, which seems a long shot, that of course doesn’t guarantee him a certificate of election,” Foley said. “There’s a gap between winning his legal theory as applied to the facts here and then having that yield enough votes for him to overcome Franken’s margin.”
Franken can’t be seated until he receives an election certificate signed by Republican Gov. Tim Pawlenty and Democratic Secretary of State Mark Ritchie.
Once Coleman files his notice of appeal, the high court will give both sides more time to submit written arguments. The chances of a hearing before May are remote.
But Minnesota justices have moved quickly in deciding past election cases. Raleigh Levine, a professor at William Mitchell College of Law, expects expediency — to a point.
“The state Supreme Court is going to think about on the one hand the need to get this matter resolved and the need to get somebody in that seat for the sake of Minnesota’s voters against the need to really consider these potentially very serious issues carefully and thoughtfully,” she said.
