Coleman lawyers working on appeal despite the long odds
By Brian Bakst
ST. PAUL — Dealt a stinging election trial loss, Republican Norm Coleman must overcome some daunting challenges to find his way back to the U.S. Senate.
He’ll have to convince Minnesota’s 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 counted. Then, Coleman needs those ballots to break disproportionately for him to vault him past Franken.
The race has now dragged through a statewide recount and a trial that formally ended Monday. In an interview Tuesday, Coleman said his lawyers would finalize the appeal notice this weekend and file it next week, which would be near the end of a 10-day window.
Coleman told the Associated Press he worries about the public’s patience but said his case merits a deeper look.
"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."
The public’s fatigue with a race that’s lingered more than five months past Election Day is apparent.
Julie Remington, a stay-at-home mom, voted for Franken but says she would have accepted a victory by either man. She said Coleman’s had plenty of time to make his case.
"At some point, you move on," said Remington, 45, of St. Paul. "This was an established process. It’s not a random, careless approach."
Public relations worker Jeanette Reinerston, 34, fears her state is becoming a laughingstock over the race. Still, Reinerston, a Republican from St. Michael, thinks Coleman is right to argue for even treatment of absentee ballots — the crux of his upcoming appeal.
"To me, a ballot is a ballot. Don’t treat different counties differently," she said. "That’s not legitimate."
Even as the race plays out in the courts, both sides are still working the court of public opinion.
Franken and his fellow Democrats are pressuring Coleman to concede, while the former senator went on a media blitz this week to say he’s justified in pressing ahead.
The Democratic National Committee said Tuesday it will begin running a radio ad in the Twin Cities calling on Coleman to concede.
"Enough is enough," the ad says. "Tell Norm Coleman to stop putting his political ambition ahead of what’s right for Minnesota."
In its ruling Monday, a special three-judge panel summarily rejected Coleman’s claim that counting flaws cost him re-election. His chief argument was that thousands of absentee ballots that didn’t get counted should have been, a violation of the standard of equal protection.
"Equal protection, however, cannot be interpreted as raising every error in an election to the level of a constitutional violation," the judges wrote in their 56-page ruling. "Although not ideal, errors occur in every election."
Coleman said 4,400 absentee ballots from Republican-leaning areas were held to a higher threshold than those counted in other places.
"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 told AP.
‘Thorough and thoughtful’
Franken attorney Marc Elias said the Coleman team missed its chance to get more ballots in.
"They had seven weeks to put on their evidence to support those ballots and they simply failed to do so," Elias said.
Election law experts described the unanimous trial court ruling as thorough and thoughtful — and said the odds were long that Coleman would overturn it.
"The court has done a pretty good job of doing its best to craft a reversal-proof opinion," said Raleigh Levine, a professor at William Mitchell College of Law. "Although Coleman is saying he is going to appeal to the state Supreme Court and has a right to do that, it’s pretty dubious that there would be any different result."
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 has a problem of his own. He can’t take the seat until he receives an election certificate signed by Republican Gov. Tim Pawlenty and Democratic Secretary of State Mark Ritchie.
The document is on hold pending the state appeal, and Pawlenty has been fuzzy about his plans once the state Supreme Court weighs in. He said a federal court case could produce more delays.
"I’m not saying I’m going to decline to issue the certificate," Pawlenty told reporters Tuesday. "I’m just saying we’ll make that decision when we get to that point."
Once Coleman files his notice of appeal, the high court will give the sides more time to submit written arguments. The chances of a court hearing before May are remote.
Minnesota justices have moved quickly in deciding past election cases. Levine 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.