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Three-judge panel to decide on timeline for Senate court case

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The view from the bench
The recount is going to court, only it will have three judges, no jury and will deviate slightly from traditional procedure.
MPR Photo/Ross Holtan

The three judges appointed this week by Justice Alan Page were each appointed by a governor from a different party. The judges will be in charge, not only of deciding the case, but also managing it.  

Norm Coleman has filed his case against Al Franken and the case will likely have a lot of the same trappings of a civil trial such as: opening statements, evidence, witnesses and closing arguments.  That's according to Guy Charles, a visiting election law professor at Duke University.  

Charles said the difference is that this will be a special proceeding.  There will be three judges instead of one, and no jury. And he said state law allows the panel to deviate a bit from traditional rules of procedure.

"It wouldn't surprise me if they decide that some things might take too much time and so given that they're sitting without a jury," Charles said.  "For example, they might provide more leeway in the questioning of witnesses and having more of a paper record than live testimony. So, there might be some things they might do differently to speed up the process a little bit."

Edward Foley, an Ohio State election law professor, has studied election contests dating back to 1792. Foley said there is no template for these legal contests and each one is handled differently.  He said there is a common thread, however, in the public's ability to accept the outcome even when there are strong views on both sides.   

That was not the case in the 2000 Bush v. Gore contest where the U.S. Supreme Court made a final decision. Many people still question the High Court's move to intervene in Florida, and some believe Gore -- not Bush -- won the election.  

In Minnesota's recount case, Foley said it's important that the three-judge panel not only make fair rulings, but also ensure the perception of a fair process.

"If you can get that closure that says, 'you know what, yeah this was a tough loss but the court that settled it, settled it fairly,'" Foley said.  

If the judges can't decide unanimously on a ruling, a two-to-one vote settles it. Whoever loses the case has the option of appealing the panel's decision to the Minnesota Supreme Court.  Once that court rules, it will send its decision, all files and proceedings, to the U.S. Senate's presiding officer. The final decision will rest with the United States Senate, which the Constitution says can then decide the qualifications of its members.