Norm Coleman Unlikely to Prevail on Appeal
I have taken a very quick look at the opinion of the three judge court in the Coleman election contest. Here are some initial thoughts.
1. A reasonable tone and tenor. This is a careful, unanimous opinion the a "tripartisan" 3-judge court. It makes findings of fact and conclusions of law that on first read appear reasonable and conservative. The opinion considers the major arguments made by Coleman and rejects them in a detailed and measured way. It is the kind of opinion that is unlikely to be disturbed on appeal by either the Minnesota Supreme Court or the United States Supreme Court.
2. The Equal Protection analysis. The court has it both ways in this opinion. On the one hand, it states that it is without jurisdiction to rule on the equal protection argument of Coleman (more o the equal protection that argument in this Slate piece). It is limited under the state contest laws in simply deciding who had more legal votes. But despite that point, the court made findings that the election was conducted under uniform standards, and that the treatment of absentee ballots did not differ all that much from county to county. The court then included a detailed and careful memorandum exploring the various equal protection issues, especially the Bush v. Gore issues. The court distinguished Bush v. Gore in some reasonable ways. As I predicted, they rejected a reading of the case that would require the counting of further illegal votes to deal with any illegal votes that had already been cast, and they rejected an argument that any lack of perfection in the casting and counting of votes constitutes a violation of equal protection. It is an impressive and sensitive handling of the equal protection issue, one I hope to study in much greater detail later. (There's also some fascinating discussion of the democracy canon, and its application to election laws generally and to absentee ballot laws that merits further study).
3. State law claims. I have not followed these claims nearly as closely. But apparently the court found that Coleman waived some of his arguments by agreeing to some procedures earlier on in the process.
4. What's next?. Coleman has promised an appeal to the state Supreme Court, but I would not count on it. He might decide that his political future in Minnesota requires him to bow out gracefully at this point. The countervailing factor is the national interests of the Republican party, which want to keep a 59th Democrat out of the Senate for as long as possible. If Coleman appeals, it is possible that the Minnesota Supreme Court would reach the equal protection issues more directly, but even if it did, I'd be surprised to see a different result.
As for federal court, I've already examined the possibility of a second federal suit. What changes now is the greater likelihood that a federal court would be willing to adjudicate an equal protection claim, because the state court formally did not do so. (However, the state court said that the U.S. Senate has sole jurisdiction to consider such issues, and the first hurdle for Coleman in a federal court case would be to convince the federal court that it has jurisdiction over this issue, rather than leaving it to the Senate.) But even if the federal court reached the issue, for reasons I've already stated, it is likely to agree with the state court on the merits that Coleman cannot successfully make an equal protection argument. (I also believe, as I stated in my earlier post, that the filing of a federal suit would not delay the issuance of an election certificate to Franken.)
The Three-judge court opinion ends by extolling the virtues of the Minnesota electoral system. I think some praise needs to be heaped on the three judge court as well, for doing a fair job and rising above the partisan politics that has infected too many election law cases in recent years.
Loading comments…
Want to reply to a comment? Hint: Click "Reply" at the bottom of the comment; after being approved your comment will appear directly underneath the comment you replied to
Harry Reid should grow a spine and seat Senator-elect Franken now!
States with political black eyes:
Florida - Bush/Gore 2000 recount
Ohio - Bush/Kerry 2004 recount
Minnesota - Coleman/Franken 2008 recount from Nov 2008 - ?
Coleman's court appeal is the audacity of no hope.
Personally, I think Coleman knows he isn't going to win. He is just doing this to keep Franken out of that senate seat as long as possible. Every time he throws another appeal out there he knows the election can not be made official. It is just a vindictive move.
Norm knows it is all but over but continues to let his fellow Minnesotans have the representation in DC that we deserve. No matter what happens now, Norm will be remembered for the sore loser senator from Minnesota that also just happens to be under investigation. Whatever good he may have done as a senator will be forgotten. Pretty sad legacy, Senator Coleman.
The "good," that Coleman may have done as a senator,(yes, I AM winking as I wrote that) was to vote with Bush's agenda 90+% of the time and pretty much using his committee to block investigation of abuses. I would submit to electroshock therapy if it would speed my forgetting the "Coleman years."
Once again the republican's assume we're all dumb.....we know what this all about, they want to keep Franken out of the Senate as long as they can because he's one more vote that would help President Obama move forward his agenda. But this is one American who is sick and friggin tried of republicans and their games at the expense of what's best for this country.
The real problem here now folks is Governor TIm Pawlenty. No one expects him to sign Franken's certificate tlll the ruling comes down from the MNSC. We all know that ruling will be for Franken, because to rule against him would turn over the state's entire process here. Ain't gonna happen.
But Pawlenty is currently making a case to let this thing play out through federal courts and up to the SCOTUS. In other words, 4 to 5 more months of no second senator for Minnesota. I can't tell you the outrage I feel that my governor, who knows darn good and well what a painstaking and fair process this was, who knows the pride Minnesota takes in running a clean electoral system, would try to play us for fools who don't understand he's all about his own ambitions instead of the welfare of this state.
With this fiasco and the collapsed bridge is there any chance of booting Pawlenty when he comes up for election again?
Why aren't Minnesotans making a big stink about this?
If I still lived there I would be protesting outside the Governor's Mansion!
Norm is being a good little NeoCon. Keep Al out of the senate. It is all about power to the NeoCons. Hell with Minnesota and the country!
Norm: What do you think the chances are of a guy like me winning my appeal?
Judge: Well, Norm, that's difficult to say. I mean, we don't really...
Norm: Hit me with it! Just give it to me straight! I came a long way just to see you, Judge. The least you can do is level with me. What are my chances?
Judge: Not good.
Norm: You mean, not good like one out of a hundred?
Judge: I'd say more like one out of a million.
[pause]
Norm: So you're telling me there's a chance... *YEAH!*
What is embarassing is the wimp that Coleman has revealed himself to be through all of this.
Forget politics, in the world of men, he's a poor sport. There is a code among men about the rules of the game, and taking your loss "like a man". I've seen it and it's almost cast in granite.
Thank you for the excellent article. It really gives us the law in a way we can all understand
Coleman is nothing but a puppet to the remaining GOP "leaders". The Rethugs arent ready for WWIII quite yet.
I understand that Minnesota need a second Senator, but if thats going to be Al Franken I wouldn't be in such a rush.
Al franken will run circles around most of the Senator's we have now. And I mean from BOTH parties.Don't underestimate Al.
At least he won't be timid in speaking his mind while making a joke out of the fools across the aisle.
You have forever forfeited your right to complain about your elected officials, if you prefer to not have one.
So you are willing to disregard the will of the people in MN because you don't like Al Franken. Too bad so sad for you because Franken is going to be their senator.
Perhaps you should read his biography before making such a stupid comment.
Senator Franken is intelligent and will be a great spokesperson for the people of
Minnesota.
He sure bets Norm.
It really doesn't matter how dubious Coleman's appeal may be, what matters is that is continues to keep an important Democratic vote out of the Senate. They will play this game as long as they can get away with it as it ties up the Democrat's agenda in Congress, legal credibility be damned.
Where is the outcry from the press that was all over Al Gore in 2000 suggesting to fight the questionable results was being a "sore loser"?
Thank you, RickCoMatic for that illuminating post. I feel better about the judges decision, knowing that one of them contributed to Coleman's campaign. And I feel better knowing that Coleman really can't (and God knows, shouldn't) drag this farce out any longer. SEAT SENATOR FRANKEN NOW!!!
HLL:
The Associate Justice that contributed to the Coleman Campaign wasn't on the Panel that decided the Election Contest.
That Judge is among the next set of Judges who are sitting on the Minn State Court of Appeals.
From: November 5, 2008:
U.S. Sen. Norm Coleman today gently suggested that Democrat Al Franken
concede the U.S. Senate race to him, thereby beginning the healing process.
"The prospects of overcoming 725 votes is extremely, extremely, extremely,
extremely remote", said Coleman, speaking at his campaign office in St.
Paul late this morning.
"If you ask me what I would do, I would step back", said Coleman…
"My hope is that we would begin the healing process today", said Coleman of
closing the political divides in the state and nation.
========
Time to take your own advice, Norm. Give it up. We don't want to pay your lawyers.
Thanks for playing. You lose.
You must be logged in to comment. Log in or connect with
