Norm Coleman Unlikely to Prevail on Appeal

05/15/2009 05:12 am ET | Updated May 25, 2011

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.