But even as Democrat Al Franken’s campaign celebrated a three-judge panel’s decision to put at most 400 ballots back in play, the Coleman camp is still promising to take its case to the Minnesota Supreme Court. And it’s not ruling out an appeal to the U.S. Supreme Court or filing a new lawsuit in federal district court.
Ben Ginsberg, a central player for George W. Bush during the 2000 Florida recount and Coleman’s lawyer, said, “If the court does not reverse its decision, it will give us no choice but to appeal that order to the Minnesota Supreme Court.”
And Ginsberg said it was “an open legal question” on whether the candidate leading after the Minnesota Supreme Court rules should be certified the winner and thus be seated in the Senate.
In its ruling Tuesday, the three-judge panel ordered absentee ballots to be turned over to the Minnesota secretary of state’s office by April 6. The ballots would then be counted in open court by April 7.
Once the ballots are counted on April 7, the court will very likely issue a final opinion, which can be appealed to the state Supreme Court within 10 days. That means Minnesota will most likely be without a second senator for at least the rest of April, a boon to the GOP, which is trying to prevent Democrats from getting their 59th seat in a chamber where 60 is king.
The court case has been exhaustive — three judges spent seven weeks reviewing 19,181 pages of filings, 1,717 exhibits, and hearing testimony from 142 witnesses. The ruling was a huge blow to the Coleman campaign, which at early points of the trial wanted the court to consider 4,800 ballots but ultimately asked the panel to count an additional 1,360.
All told, the math really doesn’t look good for Coleman after this decision, as he would have to win an overwhelming majority of these 400 ballots in question to overcome Franken’s 225-vote lead, and not every one of these ballots will necessarily be opened and recounted.
“We are obviously pleased,” Marc Elias, chief legal counsel for Franken, said in a conference call with reporters. “Obviously, the math is going to be very difficult for former Sen. Coleman and his legal team. ... We feel pretty good about where we stand, but we are going to wait until Tuesday for these ballots to be opened and counted.”
Conversely, a GOP staffer close to Coleman said: “It’s not looking good.”
Coleman’s camp had already promised a Minnesota Supreme Court appeal if these absentee ballots didn’t turn the race around, but if they lose that round as well, there will be severe pressure for Coleman to bow out, and Senate Democrats may start clamoring to seat Franken in the Senate.Ginsberg called the Tuesday ruling an “April Fool’s Day order.”
“We said that this court’s Friday the 13th order is wrong, and now their almost April Fool’s Day order is equally wrong.”
Coleman also has the full backing of Senate Republicans, who are happy to keep the appeal going as long as possible, even though many Republicans privately acknowledge that Coleman’s case is a long shot.
“The NRSC has and will continue to support Norm Coleman’s efforts to ensure that thousands of Minnesotans are not disenfranchised, that ballots exist before they are counted, and that every legitimate vote that was cast is counted once in Minnesota,” said Brian Walsh, a spokesman for the National Republican Senatorial Committee.
But Senate Democrats are clamoring to have Franken seated as soon as legally possible.
“Sen. Reid is looking forward to the final resolution of this case by the Minnesota courts so that Al Franken can finlly be seated as the new senator from Minnesota,” said Jim Manley, a spokesman for Senate Majority Leader Harry Reid (D-Nev.).
The court did not rule on Coleman’s argument that the different methods Minnesota counties use for counting absentee ballots violated the Constitution’s equal protection clause or on 132 ballots deemed missing from the Minneapolis area. It’s unclear whether the court will address those issues before it makes a final ruling.
In the ruling, the court also said it reviewed each ballot “on a ballot-by-ballot basis” to determine whether they complied with state and federal law.
“Contestants’ [Coleman's] presumptions are not reasonable in light of the small number of absentee ballots at issue in this election contest and the fact that these absentee ballots have already been carefully reviewed as many as three times by state and local officials,” the court said.
Coleman was widely expected to lose before this three-judge panel and is probably going to appeal the order to the state Supreme Court.
If he loses before the state court, Coleman would have the option of appealing directly to the U.S. Supreme Court — or filing a brand-new suit in a federal district court. In the ruling, the court determined that the 400 ballots should be counted “based upon a thorough review of the evidence and a finding that the voter complied with Minnesota law,” as well as ballots with “relevant information” that was redacted or illegible and absentee ballots where the court requires the original to make a finding. “To be clear, not every absentee ballot identified in this order will ultimately be opened and counted,” the ruling said. And making matters even murkier for Coleman is that the order appears to identify ballots that both sides wanted opened.
Elias called the order “a win for the people of Minnesota” and said Gov. Tim Pawlenty, a Republican, should certify the election if Franken remains ahead in the count.
When the case will end could depend on how much patience the Minnesota public has with Coleman. If Coleman wins over the public in arguing that thousands of voters are being disenfranchised by the court’s ruling, he could buy time to continue pursuing the case. Otherwise, he’ll almost certainly damage any future runs for public office, including a rumored bid for governor.