Senate race reaches state’s highest court
Published 10:00 am Tuesday, June 2, 2009
Midway through Monday’s Minnesota Supreme Court hearing on the state’s overdue U.S. Senate election, Justice Alan Page asked what seemed a fitting pair of questions for a race full of chess moves.
Since the Senate itself has the authority to choose whom it seats, Page mused, “How do we issue an opinion without it having to be an advisory opinion? In essence, do we have authority to do anything here?”
It was a reminder that the latest legal round in the fight between Democrat Al Franken and Republican Norm Coleman, now nearly seven months past Election Day, might not be the last.
If Coleman loses, he could file a new case in federal court or ask the U.S. Supreme Court to intervene. If Franken doesn’t like the result, he could ask the Senate to seat him.
Coleman led in the intial count. Franken won the recount. A trial also went Franken’s way. Now Coleman is appealing his 312-vote loss.
He brought that appeal to the state’s highest court, where justices kept the campaign attorneys on their heels during an hour of sharp questioning.
The court focused on whether vote-counting flaws alleged by Coleman were severe enough to deny Franken a spot in the Senate. The court’s options are limited: Justices can confirm Franken as the victor or they could reopen the count as Coleman wants.
Barely a minute into oral arguments, justices began challenging Coleman’s attorneys on the adequacy of evidence they presented in an election trial and the legality of their suggested remedy. They want more ballots counted even if some absentee voters didn’t fully comply with the law, applying what Coleman lawyers called a substantial compliance standard.
“It’s possible there are statutory violations which do not rise to the level of constitutional violation,” Page said, alluding to a threshold appeals courts often turn to before reversing a lower-court decision.
Interrupted by justices frequently, Coleman attorney Joe Friedberg argued that counties were inconsistent in the way they decided whether absentee ballots were filled out properly and should be counted. He said people who made substantial efforts to comply with the law should have their votes counted.
“Twelve thousand citizens who made good-faith efforts to vote were disenfranchised, with a variety of reasons,” Friedberg said.
Justice Paul Anderson pointed out an apparent inconsistency in Coleman’s view toward absentee ballots, referencing a court filing in December when he was still ahead. In it, Coleman’s lawyers argued that officials “must strictly follow the legislatively imposed requirements for voting by absentee ballots in order to preserve the integrity of the entire election.”
During his turn at the podium, Franken attorney Marc Elias argued that Coleman’s team failed to show specific voters were disenfranchised, but only broad categories of mistakes that might have left some voters behind.
“This isn’t evidence, this is an argument,” Elias said.
Coleman, whose term in the Senate expired in January, was in the Supreme Court chambers for the arguments, as was his wife, Laurie. Franken, the former entertainer who made his name as a “Saturday Night Live” writer and performer before becoming a liberal author and radio talker, didn’t attend.
Franken hopes the court orders that he immediately receive the election certificate required to take office. Franken is the potential 60th vote for Democrats in the Senate, though two of those are independents.
It wasn’t clear how quickly the court would rule, and the issue of the election certificate didn’t come up during oral arguments.
Several of the five justices — two others recused themselves after serving on the board that oversaw the recount — grilled Friedberg with skeptical questions. Justice Christopher Dietzen said he saw “no evidence or fraud or misconduct.”
“It seems like you’re offering little more than an opening statement in this case,” Dietzen said. “Coleman’s theory of the case, but no concrete evidence to back it up.”
Friedberg said obvious cases of widely different standards in different parts of the state raise constitutional problems of due process and equal protection.
“When Plymouth has kicked out 75 ballots for signature mismatching and 30 counties kicked out none, we’ve made our case,” Friedberg said.
Justices didn’t spare Franken’s attorney. Anderson asked Elias if one could find examples of illegally cast ballots included in the count.
Elias said no election passes without some unintentional errors in counting ballots, but said the record in Coleman-Franken includes no evidence that it happened enough to taint the result.
“So you’re saying, it was his burden to prove and he didn’t prove it, and he can’t stand up here now and speculate that it might be wrong?” Justice Lorie Skjerven Gildea asked Elias.
“Yes,” he replied.
Speaking to reporters afterward, Coleman wouldn’t talk about what lies ahead for his case.
“Let’s see what this court does,” Coleman said when asked if he’d pursue other legal options if he loses at this level. “At this point my firm hope and fervent hope is to enfranchise over 4,000 more Minnesotans.”