Court Skeptical of Coleman Arguments

Republican Norm Coleman’s legal team on Monday faced a skeptical audience of five Minnesota Supreme Court justices, who could be his last lifeline to prevent Democrat Al Franken from being seated as the state’s junior senator.

During the one-hour proceeding, the five justices peppered Coleman attorney Joe Friedberg with pointed questions on whether the campaign had provided enough evidence to prove that Coleman would have won the election if additional absentee ballots were included.

Justice Christopher Dietzen, an appointee of Republican Gov. Tim Pawlenty who is considered to be the court’s most conservative judge, said during the hearing that Coleman’s argument was filled with “legal theory” but had “no concrete evidence to back it up.”

While Franken attorney Marc Elias also received tough questioning over the fact that some counties used different standards in counting absentee ballots, the fact that Coleman was aggressively questioned by Republican-appointed judges, doesn’t bode well for his chances, according to legal observers.

“If this isn’t a 5-0 opinion for Franken, I would be totally surprised. You got the sense that the justices were very unpersuaded by the Coleman arguments,” University of Minnesota law professor David Schultz said. “What [the judges] were saying is Coleman didn’t provide the sufficient evidence to either overturn the lower court decision, or sufficient evidence to show why the additional ballots should be introduced.”

“You’ve got a state Supreme Court with more Republicans than Democrats. If there’s going to be any kind of hope for Coleman, you’d expect that to come from the Republican-appointed justices,” said election law expert Rick Hasen. “So it’s pretty notable that all three of the Republican appointees were critical of the kinds of arguments that Coleman’s camp made.”

Despite the tough reviews, Coleman attorney Ben Ginsberg said he was pleased with the oral arguments.

“It was a very well-informed and interested court that asked probing questions to deal with what obviously is a very serious issue. We feel very good about the arguments,” Ginsberg said.

Justice Alan Page concluded the hearing without setting a timetable for the court’s decision, but legal experts expect a final ruling in the next few weeks. The state Supreme Court already had over two weeks to examine briefs submitted by both campaigns.

“The quicker the better for Franken,” said Carleton College political science professor Steve Schier. “A quick opinion is probably going to be a pro-Franken decision. The longer it takes, the more hope Coleman’s forces can gather from this.”

If the state Supreme Court dismisses Coleman’s appeal, it would set the stage for Pawlenty and Democratic Secretary of State Mark Ritchie to certify Franken’s victory, which would allow him to be seated in the Senate.

The court could also send the case back to the lower court to adopt a more-lenient standard in including absentee votes – a position the Coleman camp has been asking for. Coleman’s legal team has argued that the lower court erred when it ruled that thousands of uncounted absentee ballots were inadmissible in the final count

National Democrats have made it clear that they will move to seat Franken if the state Supreme Court rules in his favor.

“We have always said Norm Coleman deserves his day in court, but the Minnesota court system should be the end of the road for former Senator Coleman,” said Democratic Senatorial Campaign Committee Chairman Robert Menendez (D-N.J.).

“This is a decision that should be made in Minnesota. It’s been 209 days since the election, and with this Court's ruling we believe Al Franken will be entitled to an election certificate.”

But if Coleman’s appeal is rejected by the state Supreme Court, he could still pursue a federal court appeal– something his legal team hasn’t ruled out. National Republicans have helped pay for Coleman’s legal defense fund – the National Republican Senatorial Committee recently spent $750,000 on his legal bills – and appear willing to draw out the proceedings as long as possible to deny Democrats a filibuster-proof majority in the Senate.

Asked at a post-hearing press conference if he would pursue a federal appeal if he loses, Coleman said: "Let's see what the court does… Let's see what the decision is. At this point my firm hope, fervent hope, is to enfranchise over 4,000 more Minnesotans."

If the court rules in favor of Franken and mandates that he receive an election certificate, all eyes will be on Pawlenty to see whether he will sign it.

Last month, the governor said that the court’s ruling could present “many different scenarios” and that he would have to “deal with that as it comes.”

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