These experts see almost no chance Coleman's lawyers will prevail in their appeal to the state’s high court to count more ballots in a bid to erase Al Franken’s slim lead.
Peter Knapp, a professor at William Mitchell College of Law in St. Paul, pointed to the court's oral arguments on Monday, when the justices expressed skepticism toward Coleman’s lawyer, Joe Friedberg.
“Each of the five justices asked some questions that seemed to hone in on the absence of evidence," said Knapp, an expert on the Minnesota Supreme Court who has kept a close eye on the case. "And when each of the five are asking those questions, that’s significant.”
He cautioned that “it’s really easy to over-read the judges' questions as a sign of the way they’re leaning,” but added: “That being said, if I had to put money on the outcome – my money would be on Franken.”
Edward B. Foley, an election law expert at the Moritz College of Law at Ohio State University, agreed: “Based on the questioning, I’d be surprised if Coleman got a remand back to the trial court.”
Foley said that Coleman’s lawyers “always had a fighting chance” based on legal theory — but, he pointed out, “having a valid legal theory is not enough to win a lawsuit.”
He and other legal scholars interviewed by POLITICO said that that the facts were simply not on Coleman’s side. Friedberg’s task this week was to convince the justices of his contention that more than 4,000 additional absentee ballots should be included in the final vote tally because they had not been handled in the same way by every county.
The legal wrangling has stretched on since January and in his appeal to the state high court, Coleman, a Republican, contended that the decision in April of a three-judge panel that ruled Franken won the election by just over 300 votes should be overturned.
In an article posted on his Web site after watching the oral arguments, Foley noted that Coleman might end up losing the appeal not because his case lacked merit, but instead because his legal team failed to muster enough hard proof to “show which specific ballots were wrongly treated by local election officials.”
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At one point on Monday, Associate Justice Christopher Dietzen, who was appointed to the court last year by Republican Gov. Tim Pawlenty, complained to Friedberg that he was offering “no concrete evidence” to back up his theories.
Guy-Uriel Charles, a Duke University professor who specializes in election law, said that he had not talked to any colleagues in the legal community who had made a convincing argument that Coleman could win his appeal.
“It’s not that Coleman hasn’t raised important questions,” Charles said. “If it is true that counties are interpreting the absentee ballot rules differently because of differential resources, that’s a question the legislature should address, but I do not think that’s a question the courts could address after the fact.”
He added, “Generally, election law is not terribly conducive to broad fishing expeditions.”
Robert Bennett, who has taught constitutional law at Northwestern University since 1969, said that the odds were slim Coleman would be successful with members of the court, who are expected to reach a decision in the next few weeks.
“There will always come a point when the judges have to say enough is enough,” Bennett said. “And it sounds to me like they think enough has been done to make this a respectable recount and doing more just doesn’t mae a lot of sense.”
In his live-blog of the oral arguments, professor Rick Hasen, an election law expert at Loyola Law School in southern California, wrote that there is “good reason here to believe that the state Supreme Court Justices went into this with their minds made up” – and that’s bad news for Coleman.
Hasen, who moderates an election law list-serve with 800 subscribers, said that not one of his members had volunteered a scenario or prediction about how Coleman could win the case. The only chatter this week, he said, focused on the shortcomings of the Republican’s legal case.
Coleman's lawyers "did the best they could with what they had to work with,” said Hansen. “Coleman just ended up on the short end of the sick.”
Other legal experts said that the court’s ruling may even foreclose the possibility that Coleman could appeal the case to the U.S. Supreme Court.
Raleigh Levine, a professor at William Mitchell College of Law, watched Monday’s oral argument with her colleague, Professor Knapp. Like other observers of the Coleman-Franken fight, she said that the justices seemed to be sending a clear message that the Coleman team had failed to present enough facts to back up their claims about the handling of absentee ballots.
“If that is the basis on which the court makes its decision, to a large extent it insulates the case from the U.S. Supreme Court,” Levine said. “If the factual premise is accepted then you have to wrestle with the Constitutional argument, but if he hasn’t even established that, there’s nothing really for the U.S. Supreme Court to do.”