After half a year of arguments and more than 19,000 pages of legal briefs, the battle over recounting election results for Minnesota’s vacant United States Senate seat reaches the state’s Supreme Court on Monday. And that may not be the last stop.
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The outcome of the fight between the Republican, Norm Coleman, and Al Franken, the Democrat, comedian and author, will determine whether Senate Democrats will have available the 60 votes necessary to kill filibusters. And while Mr. Coleman, who until recently held the seat, can continue to fight, the one-hour hearing before Minnesota’s top court marks a crucial and potentially final stage, said Edward B. Foley, an election law expert at the Moritz College of Law at Ohio State University.
“I think the Minnesota Supreme Court is, as a practical matter, the final judicial word” in the case, Professor Foley said.
If the judges rule in Mr. Franken’s favor, he said, they could order the governor to issue a certificate of election allowing Mr. Franken to be seated. If they agree with Mr. Coleman’s arguments, they could send the case back to the lower court for a new vote count using more relaxed standards that allow the consideration of several thousand absentee ballots that were previously excluded.
Mr. Franken has won the most recent legal skirmishes, but the Coleman team is arguing for the most expansive interpretation of which ballots should be allowed. “This is all about whether Minnesota will stick with its tradition of trying to enfranchise, rather than trying to disenfranchise, voters,” said a Coleman lawyer, Benjamin L. Ginsberg, who also worked for George W. Bush in his Florida presidential election battle against Al Gore.
The Franken camp declined to comment, citing the coming arguments.
Although Mr. Coleman was ahead in the initial count by 206 votes (and suggested at the time that Mr. Franken should concede), an automatic recount produced a 225-vote Franken lead. A panel of three judges then declared Mr. Franken’s margin to be 312 votes.
Experts in election law suggest that Mr. Franken will prevail. Richard L. Hasen, a professor at Loyola Law School in Los Angeles, said that Mr. Coleman’s arguments, which focus on questions of equal protection and due process, “are not arguments you get laughed out of court for.” However, he said, “If I were a betting man, I would not put a lot of money on his winning.”
Professor Foley pointed out that even if Mr. Coleman were allowed a review with additional ballots, the recount still might not deliver him a victory.
If the court does rule against him, Mr. Coleman may fight on, asking the United States Supreme Court to hear the case or even filing a new suit in federal court. Professor Foley and others say neither move would likely change the result, however.
Republican Party officials have insisted that they want Mr. Coleman to continue the fight. When asked by The Minneapolis Star-Tribune whether Mr. Coleman should concede if the State Supreme Court hands him a defeat, Michael Steele, the chairman of the Republican National Committee, responded, “No, hell no.” He added, “Whatever the outcome, it’s going to get bumped to the next level.”
Democrats have charged that Republicans are just using legal delay tactics to deny Democrats their 60-vote Senate majority.
Mr. Ginsberg of the Coleman team declined to discuss whether Mr. Coleman would continue to fight. “The answer to that question depends entirely on what the Supreme Court does, so there’s no point in abject speculation about it,” he said.
Professor Hasen suggested that even if Mr. Coleman were to fight on, or if Minnesota’s Republican governor, Tim Pawlenty, declined to sign the necessary certificate of election, Mr. Franken “should be seated provisionally” by the Senate, which has the authority to resolve disputed elections.
The Senate could reverse itself if the federal courts decided in Mr. Coleman’s favor, but the important thing is to give Minnesota its full Senate representation, Professor Hasen said, “because this has gone on too long.”