Norm Coleman is trying to push his case up another big hill, this time it's the state Supreme Court. The judges hearing Coleman's election contest rejected his claims and found the overwhelming evidence showed officials conducted a fair, impartial and accurate election. They said the citizens of Minnesota should be proud of their election system and that officials performed their duties admirably.
But Coleman and his legal team disagree. His lawyers are sure to argue in their appeal that the election violated the U.S. Constitution's equal protection clause. They contend the state disenfranchised voters when counties in some cases rejected absentee ballots for reasons that other counties did not.
In its Monday ruling, the judges addressed that argument by saying the Constitution doesn't require a perfect election, and that human errors happen in every election. The panel said just because errors occurred, that doesn't mean the constitution was violated.
"I don't think it's an appropriate response to denigrate the election administration in other places as a response to an opinion in Minnesota."
Coleman's legal spokesman, Ben Ginsberg, disagreed. He said while Minnesota has a better election system than most other states, that doesn't say much, because he says the bar is pretty low.
"This really is a clarion call that the system of election administration in this country is broken," Ginsberg said. "There is a great tendency to try and pretend that 'oh well, it really doesn't matter.' But in this case, in this election, that was this close, it absolutely does matter."
Al Franken's attorney, Marc Elias, said they understand how Coleman feels, but that his response is inappropriate.
"I understand their disappointment and some of that might be shining through," Elias said. "I don't think it's an appropriate response to denigrate the election administration in other places as a response to an opinion in Minnesota."
Elias said Franken's legal team is thrilled with the panel's ruling, and if Coleman follows through on an appeal, Franken's attorneys will be ready.
The three-judge panel's decision caps a series of losses for Coleman in the past five months. The state canvassing board found he trailed Al Franken by 225 votes after the statewide recount. Coleman lost even more ballot ground in his election contest after Franken widened his lead over Coleman to 312 votes. And now, the final ruling denied Coleman's other claims that some ballots were counted twice and that ballots missing from a Minneapolis precinct should not be included in the count.
Ohio State University election law scholar Edward Foley said Coleman has an uphill battle because Coleman has always had the burden of proving that officials got their tallies wrong, first with the canvassing board, and now with the three-judge panel.
"He carries that on appeal and that burden has been compounded by the fact that he lost at trial," Foley said. "He was the plaintiff at trial, he lost at trial, so in a sense he has a kind of double burden going on appeal."
There's been speculation that because of Coleman's string of losses, national Republican leaders are pressing him to drag the case out with appeals to delay another Democrat from being able to vote on President Obama's initiatives. But Coleman denied that. He said their help has been financial, but whether to appeal has always been his decision.
"Decisions are made here and they're made on the basis of what's right, what's the strength of our case," Coleman said. "We firmly believe that Minnesotans, thousands more Minnesotans should have their votes counted. We think that the Constitution requires that. And that's going to be our request to the Minnesota Supreme Court."
Coleman's attorneys have until next Thursday to file their appeal. The state Supreme Court can then set any deadline for both sides to provide their arguments in writing and potentially set a date for oral argument.
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