Just as he did in early January, Democrat Al Franken stood outside his Minneapolis house Monday night and pronounced himself ready to fill Minnesota’s empty Senate seat. He may have to repeat the exercise one or two more times before his exhausting election battle is really over.
A unanimous three-judge panel ruled in Franken’s favor, but former Republican Sen. Norm Coleman swiftly announced he would take his fight to the state Supreme Court. That appeal — and other legal maneuvers — 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. "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 the lawsuit.
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. "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.
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.
Franken’s attorneys argued that no election is absolutely precise and that all counties operated under the same standard.