Jun 1, 2009 10:43 pm US/Central
Extend Or End? Minn. Senate Race Up To High Court
WASHINGTON (AP) ―
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Coleman, whose term in the Senate expired in January, trailed Franken by 312 votes after a recount and his lawsuit challenging the results of that recount. (File)
Chip Somodevilla & Robin Beck / AFP/Getty Images
An hourlong hearing before a feisty Minnesota Supreme Court put a new spark in the state's U.S. Senate race Monday, but Democrat Al Franken and Republican Norm Coleman ended the day stuck in familiar waiting mode.
The justices didn't say when they would rule, meaning it could be days, weeks or even months before their decision in an election now seven months past its natural end. And the possibility that the race could be taken to federal courts means the state court's ruling may not be the last word.
"I firmly believe that Minnesotans understand the importance of getting it right," Coleman said after court adjourned. "We're very close to that point right now."
The justices could confirm Franken as the winner, while Coleman's best hope is an order to reopen the count in a race he trails by 312 votes.
The two men have combined to spend $50 million so far chasing victory, more than double what it cost candidates in 2002 when Coleman captured what had been a Democratic seat. While Coleman is seeking a second term, Franken is trying to make the leap from the entertainment world, where he gained fame as a "Saturday Night Live" writer and performer before becoming a liberal author and radio talker.
During the hearing, justices focused on whether vote-counting flaws alleged by Coleman were severe enough to deny Franken a Senate seat. Coleman's key argument for months has been that different counties applied different standards to decide whether absentee ballots were legally cast.
Interrupted by justices frequently, Coleman attorney Joe Friedberg argued that people who made substantial efforts to comply with the law should have their votes counted.
"Twelve thousand citizens who made good-faith efforts to vote were disenfranchised, with a variety of reasons," Friedberg said.
Justice Paul Anderson pointed out an inconsistency in Coleman's view toward absentee ballots, referencing a court filing in December when he was still ahead. In it, Coleman's lawyers argued that officials "must strictly follow the legislatively imposed requirements for voting by absentee ballots in order to preserve the integrity of the entire election."
And Justice Alan Page alluded to a threshold that appeals courts often turn to in deciding whether to reverse a lower-court decision.
"It's possible there are statutory violations which do not rise to the level of constitutional violation," Page said.
During his turn at the podium, Franken attorney Marc Elias argued that Coleman's team failed to show specific voters were disenfranchised, but only broad categories of mistakes that might have left some voters behind.
"This isn't evidence, this is an argument," Elias said.
If Coleman loses, he could file a new case in federal court or petition for review by the U.S. Supreme Court, which isn't certain to take the case. If Franken doesn't like the result, he could ask the Senate itself to weigh in.
Franken hopes the court orders that he immediately receive the election certificate required to take office. Franken is the potential 60th vote for Democrats in the Senate, though two of those are independents.
The issue of the election certificate didn't come up during oral arguments.
Justice Christopher Dietzen told Friedberg he saw "no evidence or fraud or misconduct."
"It seems like you're offering little more than an opening statement in this case," Dietzen said. "Coleman's theory of the case, but no concrete evidence to back it up."
Friedberg said obvious cases of widely different standards in different parts of the state raise constitutional problems of due process and equal protection.
"When Plymouth has kicked out 75 ballots for signature mismatching and 30 counties kicked out none, we've made our case," Friedberg said.
Justices didn't spare Franken's attorney. Anderson asked Elias if one could find examples of illegally cast ballots included in the count.
Elias said no election passes without some unintentional errors in counting ballots, but said the record in Coleman-Franken includes no evidence that it happened enough to taint the result.
"So you're saying, it was his burden to prove and he didn't prove it, and he can't stand up here now and speculate that it might be wrong?" Justice Lorie Skjerven Gildea asked Elias.
"Yes," he replied.
Coleman and his wife, Laurie, were in the Supreme Court chambers for the arguments. Speaking to reporters afterward, Coleman wouldn't talk about what lies ahead for his case.
"Let's see what this court does," Coleman said. "At this point my firm hope and fervent hope is to enfranchise over 4,000 more Minnesotans."
Franken did not attend.
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As of Monday, it has been 210 days since Election Day.
(© 2009 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)
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