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Senate Guru

Senate Guru

Posted March 13, 2009 | 11:51 PM (EST)

Where the Minnesota Senate Race Stands


Originally posted at my blog Senate Guru.

The legal teams have made their closing arguments and the trial has concluded as the three-judge panel will now deliberate for, likely, a period of weeks to determine who won the 2008 U.S. Senate race in Minnesota. Via Minnesota Public Radio, you can listen online to the closing arguments of both the Franken legal team and the Coleman legal team. When will a decision be handed down? Talking Points Memo asked a Minnesota election law expert:

Hamline University professor David Schultz tells TPM that he now expects the court to probably rule at some point in the first week of April, with a declaration that Al Franken is the winner.

After the three-judge panel, what will happen next? There are a couple of possibilities as to how things might (or might not) proceed. In my analysis, I operate under two assumptions:

A) Norm Coleman is a loser and Washington Republicans know it. Wait, huh? If the D.C. Republican establishment know that Coleman is a loser, why do they bother supporting him? Ultimately, for Republican leadership, an empty seat is as good as a Coleman win. Why? The Senate GOP's only weapon is the filibuster. Whether there are 99 seated Senators or 100 seated Senators, Democrats need 60 votes for cloture. Therefore, a prolonged legal battle keeping the seat empty is as good as a Coleman win.

B) Norm Coleman is just about out of money and relies entirely on that Washington Republican establishment to fund his legal battle at this point. Norm Coleman is not personally wealthy, as evidenced by his extremely frequent refinancing of his own home, treating his mortgage like an ATM. Coleman has not only had to contend with the cost of a campaign in overtime, but also the legal bills associated with lawyering up in the case of his political benefactor allegedly funnelling money to his wife's company. Further, Coleman now faces a possible legal battle over whether his campaign broke the law when they did not inform Coleman donors of the possible breach in online security (due to the Coleman team's own incompetence). As long as it fulfills the national Republicans' whims to prolong the legal battle and keep the seat empty, they will fund it. Once it's a done deal and Franken must be seated, the money faucet can be shut down awfully quick. (And I don't think Coleman will be able to generate much new grassroots Minnesota fundraising after the aforementioned donor security breach scandal in which the Coleman camp put its ability to fundraise ahead of the financial security of its donors.)

So, after accepting those assumptions, what might happen next?

1) Norm Coleman could accept defeat. If that's what happened, then the three-judge panel's decision, around the first week of April, would be it; and, Senator-elect Al Franken would be seated and referred to simply as Senator Al Franken.

2) Norm Coleman could appeal the decision. The appeal would very likely get fast-tracked before the state Supreme Court. Such an appeal would take an estimated two months. There is one big reason why this might not happen:

Schultz poses a very interesting scenario, one that could bring the entire appeals process to a crashing halt and force the granting of a certificate of election.


The election-contest proceeding operates under a loser-pays system -- so if Coleman loses, his campaign committee would have to pay all the legal costs of Team Franken. Those numbers aren't publicly available, but Schultz estimates it at anywhere between $1-3 million.

And it's also normal procedure in such civil cases, Schultz explains, for a losing party that appeals to then be served a court order requiring them to place in escrow the amount for which they are currently liable. So if Franken's lawyers are smart people -- and nobody would doubt that they are -- Schultz sees it as very likely that they would seek to force Coleman's committee to procure millions of dollars up front just so they could start an appeal.

Coleman (read: the NRSC and RNC) would have to put up millions of dollars in advance just to have the appeal heard. The question then becomes: Is it worth it to the Washington Republican establishment to dump a couple million bucks in exchange for a Franken-less Senate for an extra two months? My guess is that they'll decide against such an "investment," but it won't shock me if Republicans pony up the cash either.

3) Norm Coleman, upon losing his state Supreme Court appeal, could further appeal to the U.S. Supreme Court, claiming that the equal protection clause of the U.S. Constitution was violated. Of course, Coleman would still have to depend on D.C. GOP big bucks to fund his continued legal challenge. Now, here's why this might not happen. While an election certificate can't be issued while state-level appeals are underway, some interpretations of the standard suggest that an election certificate can be issues once state-level appeals have been attended to, even if appeals are ongoing in a federal court:

Specifically, the justices, writing unanimously, apparently tipped their hand on on how they will rule on the question of whether Franken will be entitled to a certificate if Norm Coleman tries to keep the case going in a federal court or in the U.S. Supreme Court. The Minnesota Supremes apparently indicated that, under that scenario, Franken gets his certificate when the state process is done, even if it's still alive in federal court. ...


In writing the ruling, the state Supremes described the statute on certificates as providing that "a certificate of election cannot be issued until the state courts have finally decided an election contest."

If we further assume that this interpretation is accurate, and Senator-elect Franken receives his election certificate after the state Supreme Court appeal is heard and dismissed - and is, therefore, seated in the U.S. Senate - Republican leadership loses its incentive to prolong the legal battle and stops funding Coleman's legal team. As such, Coleman simply can't afford to move forward (though it is irrelevant if he did because he lost), and we have a seated Senator Franken.

So which of the three will happen? We probably won't know that any sooner than we know the three-judge panel's decision. What we do know is that Coleman's prolonging of the case any further is dependent on D.C. GOP money; and, we should expect Coleman to be working the phones for the next few weeks to the NRSC, RNC, and fellow Senators explaining why his appeal would be a good investment.