Thursday, April 16, 2009

Court Rejects Coleman Effort to Turn Battle with Franken into Another 'Bush v. Gore'

Declaring Democrat the Winner of Hotly-Contested U.S. Senate Race by a Razor-Thin Margin, a Three-Judge Panel Unanimously Rejects Republican's Argument That Minnesota's Recount Process Is Unconstitutional; Optical-Scan Voting System Is Deemed 'Highly Reliable' Compared to Florida's Problem-Plagued Punch Cards in 2000

A composite image of Norm Coleman and Al Franken.

Republican Norm Coleman (left) may end up having the words "former Senator" preceding his name in the media soon, while Democrat Al Franken (right) may find himself referred to as "Senator-elect," following a unanimous decision by a three-judge Minnesota court panel that rejected Coleman's claim that the state violated the U.S. Constitution by allowing different counties to use different methods to count absentee ballots in the bitterly-contested -- and still unresolved -- U.S. Senate race. The unanimity of the court's ruling will likely make it harder for Coleman -- who's been out of office since his Senate term expired in January -- to overturn Franken's narrow lead over Coleman in last November's election. (Photos: AP via

(Posted 5:00 a.m. EDT Thursday, April 16, 2009)



With its angry charges about voter disenfranchisement, a controversial hand recount and a high-stakes courtroom drama, the battle between Norm Coleman and Al Franken in Minnesota is beginning to look a lot like Bush v. Gore.

Or is it?

Coleman has raised the epic 2000 election fight -- and the 5-4 Supreme Court decision that resolved it -- in trying to make the argument that Minnesota violated the U.S. Constitution’s Equal Protection Clause by allowing different counties to use different methods to count absentee ballots. Coleman has even retained a legendary Bush v. Gore figure, Republican lawyer Ben Ginsberg, to help represent him.

But in ruling against Coleman Monday night, a three-judge panel made its view perfectly clear: This case is not Bush v. Gore, and Minnesota’s electoral process is nothing like Florida’s.


“The citizens of Minnesota should be proud of their election system,” the three judges wrote in a sweeping opinion that roundly rejected Coleman’s arguments. The panel declared Franken the winner by a razor-thin 312 votes out of nearly three million cast.

Unlike Florida in 2000, Minnesota has laws in place that spell out the procedures for a recount and set standards to help determine which ballots could be accept and rejected. While hanging chads from punch-card ballots loomed large in Florida, Minnesota has optical scanners deemed reliable by statewide audits.

And while the legal proceedings in 2000 were filled with split judicial decisions, often breaking down on partisan lines, the unanimous ruling of the three-judge panel gives Coleman little basis to argue that he’s the victim of a partisan judiciary.

Unless the Minnesota Supreme Court -- to which Coleman already has filed an appeal -- rules in his favor (or at least some judges dissent from a majority ruling against him), “it’s going to be a ton of bricks on Norm Coleman’s back,” said Lawrence Jacobs, director of the Center for the Study of Politics and Governance at the University of Minnesota.

“Coleman is helped when there is doubt,” Jacobs said. “What’s been very apparent is that there is no doubt up until this point.”


The legal battle, now in its fifth month, has proven to be very expensive for both Coleman and Franken -- and is going to get even more expensive as it continues to drag on, especially for Coleman, who's going to have to come up with a lot more money than he has now.

Coleman and Franken each carry less than $500,000 in their campaign accounts. In their decision against Coleman, the three-judge panel also ruled that Coleman has to pay court fees and some of Franken’s legal expenses, adding to his already hefty tab.

Since the beginning of the year, Coleman has spent nearly $4 million on legal fees. While he raised $2.3 million this quarter, he now has just $469,563 in cash on hand, according to new campaign finance filings.

Meanwhile, Franken has just $483,731 in his campaign account after raising $2.6 million and spending $3.5 million as the recount trial unfolded.


On Tuesday, Republicans insisted that the entire election process is filled with doubt.

In a fund-raising plea to supporters, Senator John Cornyn (R-Texas), the chairman of the National Republican Senatorial Committee, said that the court’s ruling was “fundamentally misguided” and failed to resolve the equal-protection and due-process violations alleged by the Coleman campaign, saying that some 4,400 absentee ballots remain uncounted.

“It’s frankly shocking that many of the same Democrats who so loudly decried voter disenfranchisement during the Florida recount in 2000 have so quickly run away from that principle when it no longer fits their political agenda,” Cornyn said.

But there’s another catch for Coleman and his Republican allies: Their equal-protection arguments rely in part on the Supreme Court's decision in Bush v. Gore -- a decision that came with a disclaimer by the justices:

“Our consideration is limited to the present circumstances,” the Supreme Court majority said, “for the problem of equal protection in election processes generally presents many complexities.”


The three-judge panel in the Franken-Coleman case took pains to point out how circumstances are different in Minnesota. While acknowledging that errors were bound to happen in any election, the court said that the Minnesota Senate election was free from fraud and that any errors that did take place did not reach a constitutional violation of equal protection.

“There is no evidence of a systematic problem of disenfranchisement in the state’s election system, including in its absentee-balloting procedures,” the judges wrote. “To the contrary, the general election resulted in a ‘fair expression’ of the voters of Minnesota.”

Benjamin Ginsberg, an attorney for Coleman, said Tuesday that the judges spent “so much time in patting their back on the Minnesota system” that they “missed the issue” that thousands of voters are still being disenfranchised.

He argued that Coleman had his due-process rights violated since the court changed its rules in midstream -- an argument that could be raised at the federal level -- and that on appeal to the state Supreme Court, the GOP argument will center on those 4,400 uncounted absentee ballots.

“We’ll be at peace if all Minnesotans are enfranchised,” Ginsberg said.

But Marc Elias, Franken’s attorney, said Tuesday that ballots are often rejected for “a lot of really good reasons,” like people voting who are not eligible, not registered or are convicted felons. And he predicted that if Coleman loses and seeks review from the U.S. Supreme Court, the high court may decline to get involved.

“It’s extremely unlikely that the U.S. Supreme Court would have reason to take it,” Elias said, citing the court’s usual reluctance to dive into electoral matters -- especially given the fact that the high court's public reputation as the impartial arbiter of last resort was damaged following Bush v. Gore.

Nevertheless, it takes only four of the nine justices to grant a writ of certiorari -- a move that would once again put the court in the position of deciding an election.


Meanwhile, a strong majority of Minnesota voters think that Coleman should
concede and that Governor Tim Pawlenty should certify Franken as the
winner, according to a new poll posted Wednesday on the Web site of USA Today.

The survey, conducted by Public Policy Polling, found that 63 percent of Minnesotans believe Coleman should concede the race. While nearly all of Franken's supporters feel that way, nearly a third of Coleman's backers concur with that sentiment.

Fifty-nine percent expressed support for Pawlenty, a Republican, certifying Franken as the winner and for Franken to be sworn in as Minnesota's junior senator immediately afterwards.


Cornyn is threatening “World War III” if Democrats try to seat Franken in the Senate before Coleman can pursue his case through the federal courts.

Cornyn acknowledged that a federal challenge to November’s elections could take “years” to resolve. But he’s adamant that Coleman deserves that chance — even if it means Minnesota is short a senator for the duration.

Eric Schultz, a spokesman for the Democratic Senatorial Campaign Committee, accused Cornyn and the Republicans of holding the Minnesota seat hostage to prevent Democrats from getting a 59th vote in a chamber in which 60 are needed to choke off GOP filibusters and move major pieces of legislation.

“Governor Pawlenty ought to make clear that if former Senator Coleman chooses to appeal the outcome of the contest in the state Supreme Court that this is the end of the road -- and that, consistent with the law, he will certify Al Franken the winner following that state court appeal,” Schultz said.


But even if Coleman pulls off a long-shot legal victory, Democrats are vowing to make him wish that he hadn’t. Separate and apart from the ongoing legal dispute over November’s election, the Minnesota Republican faces several unresolved investigations:

# a reported FBI probe into his dealings with Nasser Kazeminy, a friend and benefactor;

# a potential Senate Ethics Committee inquiry into his Capitol Hill living arrangements;

# a federal elections investigation into his use of campaign donations for legal expenses;

# a possible state probe into his campaign’s handling of donors’ financial information on its Web site.

“Coleman would almost be better off if he lost,” said David Schultz, a professor at Hamline University in St. Paul (who is not related to the Democrats' Eric Schultz). “Should he win, he [Coleman] faces a host of legal and other issues in the Senate. He would enter the Senate with the Kazeminy case shadowing him, and that would almost certainly produce an ethics investigation.”

J.B. Poersch, executive director of the Democratic Senatorial Campaign Committee, says he plans to make Coleman’s problems an issue against Republican incumbents in next year’s midterm elections.

“These are really serious ethical issues, and the longer Republicans entangle themselves with someone like Coleman, the more damage he does to them,” Poersch told Politico. “We’re going to bring them up anyway, but they would be better off if he was out of the Senate.”

Senator Debbie Stabenow (D-Michigan) echoed those sentiments, adding, “I think it appears he’s got a number of challenges in front of him. I would think it would be wise for him to make a decision to accept the outcome of the voters in Minnesota.”

Coleman, who on Thursday laid out his legal strategy to supporters in Washington, has flatly denied any wrongdoing and dismissed the complaints against him as a smear campaign organized by Democrats.

“Senator Coleman will be returning to the Senate as the state’s senior senator with elevated posts on the committees and in a position to provide Minnesotans with the high-quality constituent services that earned him the nickname ‘Minnesota’s mayor in Washington,’” said Tom Erickson, a Coleman spokesman. “He remains encouraged by the support of his colleagues in the Senate who are committed to seeing that every legal vote is counted.”

Erickson says Franken himself faces unanswered questions about his failure to pay taxes and workers’ compensation fees in 18 states prior to his campaign. Erickson singled out Franken’s claim that he was unable to locate information on his tax payments prior to 2003, saying, “I think the scope of these issues would make Tom Daschle blush.”

(Politico's Glenn Thrush and USA Today contributed to this report.)

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Volume IV, Number 30
Special Report Copyright 2009, Capitol News Company LLC.
The 'Skeeter Bites Report Copyright 2009, Skeeter Sanders. All rights reserved.


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