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Jan 7, 2009 6:36 am US/Central
Sen. Race Not Over Yet: Coleman To File Lawsuit
ST. PAUL (AP) ―
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Former Sen. Norm Coleman (File)
Norm Coleman
Does it seem like Minnesota's U.S. Senate race is taking forever to reach a conclusion? Just wait.
The contest, already two months past Election Day, on Tuesday moved even further from the voters and into the hands of lawyers with Republican Norm Coleman's decision to file a lawsuit challenging Democrat Al Franken's recount victory.
Coleman's lawsuit is likely to keep one of Minnesota's two U.S. Senate seats unoccupied for weeks or even months. It promises to reopen many of the disputes that arose during the recount, and raise new questions about the conduct of the election and the counting of ballots.
Coleman acknowledged a desire among some Minnesotans to move on, but said a larger principle than expediency is at stake.
"We are filing this contest to make absolutely sure every valid vote was counted and no one's was counted more than anyone else's," Coleman, his wife Laurie at his side, said at a Capitol news conference filled with cheering supporters.
"Democracy is not a machine," Coleman said. "Sometimes it's messy and inconvenient, and reaching the best conclusion is never quick because speed is not the first objective, fairness is."
The lawsuit was sparked by a state board's determination a day earlier that Franken won 225 more votes than Coleman in the November election. But state law prevents officials from issuing an election certificate until legal matters are resolved, and Franken did not participate Tuesday when new U.S. senators took the oath of office in Washington.
Coleman attorney Fritz Knaak estimated the lawsuit could take at least two months to resolve.
Franken attorney Marc Elias called Coleman's lawsuit "essentially the same thin gruel, warmed-over leftovers from meals we've all been served over the last few weeks."
Elias said that Coleman has the right to sue, but that doesn't mean his claims have merit, and he was confident Franken would prevail. "There simply aren't the votes there," he said.
Elias said Franken remained in Minneapolis. He refused to say whether the campaign believes the former "Saturday Night Live" personality should be seated while the election challenge is pending.
Franken e-mailed supporters Tuesday seeking donations to carry on the legal fight, just as Coleman did a day earlier.
Coleman, whose term expired Saturday, led Franken by 215 votes in the Nov. 4 count but that flipped during a prolonged recount.
In going to court, Coleman has three big challenges: Raising money to pay escalating legal bills, proving the election was flawed, and managing the public's desire to have the race over.
"They definitely have an uphill fight on their hands," Guy-Uriel Charles, a professor of election and constitutional law at the University of Minnesota, said. "Their legal theory will have to overcome a burden of proof, and then they have to find enough votes to overcome Franken's lead."
That could prove difficult, since any bloc of new votes would almost surely include some for Franken. A lawsuit gives both sides options they didn't have during the recount, such as accessing voter rolls, inspecting machines and introducing testimony from election workers.
Coleman's filing includes some of the points his lawyers have been making for weeks. It centers mainly around claims that hundreds of rejected absentee ballots from Republican-leaning areas should have been part of the recount, that some ballots in Democratic territory were counted twice and that election officials were wrong to use machine tallies for a Minneapolis precinct where ballots went missing.
But there are new angles, too.
The lawsuit alleges that the Canvassing Board made mistakes when determining voter intent on challenged ballots, that ineligible voters cast ballots, that some ballots lacked poll judge initials, and that some absentee ballots were erroneously opened early, raising chain-of-custody concerns.
Elias wouldn't detail what counterclaims Franken might make, but he said there would be some.
State law leaves the Supreme Court chief justice with the duty of picking the three-judge panel to hear the lawsuit. But a state courts spokesman said Wednesday that Chief Justice Eric Magnuson will delegate the assignment to Justice Alan Page, the court member with the most seniority.
Magnuson, a Republican appointee, served on the board that oversaw the recount. Page, who has been on the court since he was elected in a 1992 nonpartisan race, has been mentioned previously as a possible Democratic candidate for political office.
A trial is supposed to commence within three weeks of the case being filed.
The costs of the election lawsuit falls to the losing campaign, although state law could require units of government to pay the costs if their errors or irregularities lead to a reversal.
Coleman was asked at his news conference if he was certain he'd win his legal challenge.
"I can't say I'm 100 percent confident," Coleman said. "I don't know what the outcome will be. It was a lot closer than I thought it would be."
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Norm Coleman was born in New York City in 1949. Al Franken was born in New York City in 1951.
(© 2009 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)