CQ TODAY ONLINE NEWS
– POLITICS
Feb. 18, 2009 – 3:38 p.m.
Coleman’s Latest Vote-Count Setback Could Be Fodder for Appeal
By Emily Cadei, CQ Staff
Minnesota Republican Norm Coleman was dealt another setback Wednesday in his legal efforts to overturn a state-certified recount in his 2008 U.S. Senate contest, which shows him losing his re-election bid to Democratic challenger Al Franken by 225 votes.
The ruling on an absentee ballot-counting issue by a three-judge Minnesota court panel — which is presiding over the dispute that has delayed a final result in an election held almost four months ago — could give Coleman material for a future appeal to the federal courts.
The court unanimously denied Coleman’s request, made Monday, asking the court to reconsider an order it issued last week involving absentee ballots that had been rejected for technical reasons. The order eliminated at least 13 of 19 categories of rejected absentee ballots from consideration in the trial.
Coleman’s lawsuit hinges on reconsidering as many as 5,500 absentee ballots it says were wrongly rejected. The court’s decision last week whittled that number to approximately 3,500.
Coleman's attorneys argued that the court violated the equal protection clause of the Constitution — “no state shall ... deny to any person within its jurisdiction the equal protection of the laws,” the same argument that was cited in the Bush v. Gore case that certified George W. Bush ’s victory in the 2000 presidential election. The attorneys pointed to categories of ballots rejected by the court that had been counted in some precincts during Minnesota's recount. In light of this, they argued those categories should not have been thrown out.
Ben Ginsberg — a prominent Republican lawyer who is acting as attorney and spokesman for Coleman — said in a statement announcing the request that the decision would disqualify “a large number of ballots that are the exact same as hundreds, if not thousand [sic], that have already been counted.”
The court’s refusal to reconsider that decision “rejected emphatically” Coleman’s attempts to use “this federal law as a guide for what they claimed was a better understanding of state law,” said Edward B. Foley, an election law professor at Ohio State University's Mortiz College of Law.
Foley said, however, that the ruling does not put to rest all equal protection issues. For example, Coleman’s legal team could “go back and say this 225-vote margin is infected, if you will, by ballots that have been ruled by this three-judge panel as not-legal votes.” Foley said it’s unlikely state law would allow previously counted ballots to be from removed from the tally, but Coleman could argue the count as a whole is invalid.
“I don’t think the court can simply ignore [the equal protection issue],” Foley said. “It has to dispose of that one way or the other.”
Whether and how the judges opt to address Coleman’s equal protection arguments could encourage the one-term Republican senator to consider a potential appeal to either the state Supreme Court or a federal district court.
The Coleman campaign alluded to as much in its statement Monday, quoting Ginsburg, “Without a remedy, we will be faced with a widespread equal protection problem that would not only violate the law, but create constitutional legal issues that would only delay this process further.”
The Franken campaign claimed that Coleman’s legal team is laying the groundwork for an appeal, pointing to its decision to continue questioning witnesses this week on categories of ballots that are no longer part of the trial.
“The court on Friday ruled inadmissible and irrelevant certain classes of ballots that didn’t meet the statutory requirements of Minnesota law,” Franken attorney Marc Elias said after the court was adjourned Monday. “So what you saw today ... essentially was Norm Coleman’s lawyers making a record for appeal.”
The Coleman campaign has been mum on whether it is planning an appeal. It did not respond to calls Wednesday, releasing only a statement claiming the court’s decisions on the matter have resulted in “a legal quagmire that makes ascertaining a final, legitimate result to this election even more difficult.”
Comments
Obviously at this point, the sole reason Coleman keeps up this challenge is to keep Franken out of the Senate for as long as possible. It would be nice to see some polling to see how badly the Republican brand in Minnesota is being damaged by this.
For a state that is strong Democratic in presidential elections (MN. hasn't voted for a Republican since Nixon in 1972), there are sure some wacky Republicans there....Coleman & that Rep. Michelle Bachman, wow is she a nut case... Norm Coleman should just end this charade, have some class & cocede the election to Al Franken - enough is enough!
Why should Coleman concede? If you followed the recount at all it should be apparent that certain districts counted votes differently than other districts, thus giving Franken his current lead. The Supreme Court has already stated that all districts in a state must use the same criteria for counting ballots for an election to be valid. Is Coleman supposed to say, "okay, I give up even though the 'loss' was the result of unconstitutional vote count"? If Franken was still behind after this same recount procedure was used, we'd be reading media reports of voter disenfranchisement and GOP ballot tampering. Because he's in the lead, though, everyone just wants to call it finished. Doesn't anyone get suspicious that whenever a Republican wins an election in a Dem state by less than 1,000 votes, they seemingly always lose after the recount? Coleman should keep fighting until all ballots have been counted in a manner that provides both candidates "equal protection under the law."
The bogus nature of the Republican equal protection argument is that it seems to only apply to criteria in a recount, but not in the initial voting. Varying voting systems from county to county, with corresponding distinctions in efficacy of the voting system (e.g., optiscans v. paper ballots) is also a violation of equal protection. However, that point never seems to get raised
The "clever" procedure for which absentee ballots to count set up by the Minnesota Supreme Court required both parties (and the government) to agree to count a ballot. I suspect the judicial response to equal protection claims on Coleman's part will be, "You had your chance to object to those ballots, and you said they were okay. We're not going to let you take that back after they've been opened and counted. By accepting those ballots back at the recount stage, you waived your chance to object to them in the future. You waived that again at the start of the challenge proceedings. So you don't get to try to get them thrown out later; the existence of one set of mistakes (that you agreed to) is not an equal protection clause right to make other mistakes. And by the constitution, the final arbitrator of the election is the Senate, not the Supremes. Note that the Supremes just wanted Bush elected; they didn't want to be dragged into every little "my ballot was printed on beige paper but that county used white paper" dispute for equal protection. Since it's only a senator, and only senator #59, the Supremes won't want to take it on.
Coleman should concede because every day he keeps this farce alive, he is preventing Minnesotans from getting their full participation in the Senate, he's costing the taxpayers money, and he's making a fool of himself. The court is only going to overturn the recount if Coleman can prove that they made a mistake, that he didn't object to the mistake at the time, and that correcting the mistake will put Coleman ahead of Franken - which isn't likely to happen.
There must be a better way of handling these situations. This is essentially a tie. You can't realistically count millions of votes and come up with a measurement that is accurate to less than 300 votes. There are just too many quirks in the system. I don't know who won -- no one does. Ultimately the decision as to who gets named Senator will be made by this overly complicated game of the procedure
Repugs are stumbling into oblivion and are clinging on desperately in their futile attempt to some form of power; just observe the miserable lab rats in their quest for relevance.
The original count had far less problems than the "recount +". Minnesotan's picked Coleman -- he should not concede. Pawlenty should call for a run off election and appoint Coleman in the interim.
Somemore republican shenanigans. Anything to hold up progress when they had eight years to do right, but put us in this mess we are in today. Al Franken won fair and square. GOP have selective memory block when they lose, like who won the presidential election by a landslide. The word NO is the only word they have in their limited vocabulary. Al Franken Senator of Minnesota. Case closed!
Last year, when it looked like he was ahead, Coleman implored Franken to simply accept defeat and not embarrass himself by dragging the election through the court system. And now it seems the filthy Republican hypocrite will not take his own advice. More's the shame.
It's easy to miss the irony here. When Coleman was temporarily "ahead", he was all for wrapping things up, so MN would not be denied representation during a critical time in our history, and loudly and vociferously called for Franken to concede. How anyone takes Coleman seriously is beyond me. He's obviously just dragging things out to the detriment of Minnesota and the country as a whole. Shameful.
All you democrats who hate this country should leave.It has been known for a long time you still elections and your acorn thugs like to help you.Coleman has a right to challenge what looks like an attempt to still this election.And to the vet you should be ashamed to call yourself a democrat.I my dad two nephews,my brother,mother and many others served under that flag and democrats dont support america or its founding priciples,they support unions and socialism.
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