JUDGES: Franken winner of Senate race
Read the ruling
MUST WATCH: One-on-one with Coleman
ST. PAUL, Minn. (AP) – A Minnesota court confirmed Monday that Democrat Al Franken won the most votes in his 2008 Senate race against Republican Norm Coleman.
The ruling isn’t expected to be the final word because Coleman immediately announced plans to appeal to the state Supreme Court. He has 10 days to do so. That appeal could mean weeks more delay in seating Minnesota’s second senator.
“It’s time that Minnesota like every other state have two” senators, a jovial Franken said outside his Minneapolis town home with his wife, Franni, at his side. “I would call on Senator Coleman to allow me to get to work for the people of Minnesota as soon as possible.”
After a statewide recount and seven-week trial, Franken stands 312 votes ahead. Franken actually gained more votes from the election challenge than Coleman, the candidate who brought it.
The state law Coleman sued under merely required three judges to determine who got the most votes and is therefore entitled to an election certificate. That critical certificate is on hold pending appeal, and GOP Gov. Tim Pawlenty has hedged when asked if he’ll deliver it after the state courts are done reviewing the case.
“The overwhelming weight of the evidence indicates that the November 4, 2008 election was conducted fairly, impartially, and accurately,” the judges wrote in their unanimous opinion. “There is no evidence of a systematic problem of disenfranchisement in the state’s election system, including in its absentee-balloting procedures.”
In its order, the judicial panel dismissed two attempts by Coleman to subtract votes from Franken’s column over allegations of mishandled ballots in Minneapolis.
The judges rejected Coleman’s argument that a state board improperly made up for a packet of ballots lost between the election.
His lawyers conceded that the ballots – believed to be 132 – once existed but said their disappearance rendered them invalid. Coleman said he was entitled to review all ballots as part of the recount.
Coleman’s allegation of double-counting involved dozens of ballots that were duplicated because they couldn’t be fed into optical scanning machines on Election Day. His lawyers said the original and duplicated ballots lacked proper markings and it’s possible both version were tallied during the recount.
More Franken votes were at stake in both areas.
Coleman’s campaign lawyer Ben Ginsberg said an appeal was certain.
“The court’s ruling tonight is consistent with how they’ve ruled throughout this case but inconsistent with the Minnesota tradition of enfranchising voters,” Ginsberg said, adding in a written statement that he believes 4,400 unopened absentee ballots should count. “For these reasons, we must appeal to the Minnesota Supreme Court so that no voter is left behind.”
But Rick Hasen, a professor at Loyola Law School in Los Angeles, called it “a careful, unanimous opinion” that is “unlikely to be disturbed on appeal” by either the Minnesota Supreme Court or the U.S. Supreme Court.
“The opinion considers the major arguments made by Coleman and rejects them in a detailed and measured way,” said Hasen, who runs an election law blog.
Taken as a whole, the ruling diminishes Coleman’s chances of retaining a seat he won in dramatic fashion in 2002. That year, he narrowly defeated former Vice President Walter Mondale, who stepped forward when Democratic incumbent Paul Wellstone died in a plane crash with two weeks to go in the campaign.
Franken, who made his name as a “Saturday Night Live” performer in the 1980s, entered the Senate race more than two years ago. The former liberal talk radio host and author outlasted other Democrats vying for the seat. He overcame several stumbles to catch Coleman in the race’s final weeks.
A third-party candidate’s strong showing left Coleman and Franken virtually deadlocked on Election Night, triggering an automatic recount of 2.9 million ballots. Coleman actually led by about 700 votes before routine double-checking of figures by local officials trimmed his edge to 215 votes heading into the hand recount.
Franken pulled ahead of Coleman in late December, and by the recount’s end in early January he was up by 225 votes. Days after Coleman’s single term expired, the former senator sued over the recount.
The trial gobbled up much of January, February and March. An appeal could push the race into May or beyond.
While Coleman has 10 days to file his Minnesota Supreme Court petition, he’ll have more time to make supplemental filings with the high court. It’s possible for Coleman to initiate a new action in federal court, too.
Coleman’s lawyers have said their appeal will mostly center on violations of the constitutional guarantee of equal protection. They say some counties treated absentee ballots differently, some rigorously checking to make sure voters met all legal requirements and others allowing more flexibility in applying the state standard.
Ginsberg said the trial court made things worse by requiring the campaigns to prove voters strictly abided by the law before the panel would count a previously rejected absentee ballot.
Franken’s attorneys argued that no election is absolutely precise and that all counties operated under the same standard.
A key question for the high court is what tolerance for error is acceptable. The three-judge panel gave its take, saying that local officials used “reasonable discretion to address election issues unique to their jurisdictions while still operating under the uniform standards of Minnesota law.”
Either side can appeal an eventual state Supreme Court decision to the U.S. Supreme Court or throw the disputed election before the U.S. Senate, which can judge the qualifications of its members.
The trial court judges – Hennepin County’s Denise Reilly, Pennington County’s Kurt Marben and Stearns County’s Elizabeth Hayden – were assigned to the case by the Supreme Court. But they became judges, respectively, under governors from the Republican Party, the Independence Party and the Democratic Party.