Once the state canvassing board decides the election, anyone can challenge that decision. The question is what happens next. As many attorneys like to answer, it depends. It depends on what part of Minnesota law you read and how you interpret what appears to be a conflict.
University of Minnesota Law Professor Fred Morrison notes that one part of the statute says the Supreme Court chief justice will appoint a three-judge panel to decide the contest, while another part of the statute says one judge will decide the contest, and he or she will be limited to deciding which party received the highest number of votes legally cast.
"So you have the odd situation that the statute says in one part, there will be three judges appointed by the chief justice and in another section it says the judge will decide and only talks about one judge," Morrison said. "And that's going to be a question of interpretation for the courts."
Morrison said he thinks the courts will likely decide the statute calling for a three-judge panel will control, because the Legislature passed that part of the law more recently. But he said it's an arguable point, and in a race this tight, it's one more issue open for dispute.
If Morrison's prediction holds true and the chief justice appoints a three-judge panel to decide an election contests, that opens the door for another potential avenue for challenge. That's according to Guy Charles, a visiting election law professor at Duke University. Charles said in this case, Chief Justice Eric Magnuson is also a member of the canvassing board that certifies the election. He said the idea that Magnuson will choose the panel that will essentially hear an appeal of that board's ruling, raises an eyebrow over the integrity of the process.
"It puts an individual in a position where they have to play a lot of roles and we try to avoid that in the law," said Charles. "We try to avoid courts passing judgment on reviewing themselves. We try to avoid that very much because of the perception of bias."
A spokesman for Magnuson said the chief justice wouldn't comment on the issue at this time.
Regardless of how many judges hear the contest, unhappy parties will have the option of appealing that decision to the Minnesota Supreme Court. Chief Justice Magnuson and Justice G. Barry Anderson, who also serves on the canvassing board, have recused themselves from recent court challenges brought by the Coleman campaign. Hamline Law Professor Lucinda Jesson said the final word in the case ultimately lies with the U.S. Senate to decide whom to seat as a senator.
"The decision of the Minnesota Supreme Court on the election contest will be sent to the presiding officer of the U.S. Senate along with all the files and proceedings, which would include those district court judges if they took evidence about whether there were serious and deliberate violations in Minnesota election law," Jesson said.
When asked whether the parties could ask the U.S. Supreme Court to hear a Minnesota election challenge, Jesson said it's not likely. She said the Supreme Court usually stays out of state election law, with the striking exeption of Florida's Bush v. Gore election contest. Jesson said she believes the Florida case will continue to be an exception for the Supreme Court venturing into state elections, and it probably won't get involved in a Minnesota election case. But she said it's possible.