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Senate outcome in Supreme Court's hands

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Norm Coleman
Republican Norm Coleman after today's Minnesota Supreme Court hearing on his lawsuit challenging the outcome of the Nov. 4 U.S. Senate election.
MPR Photo/Tom Scheck

Nearly seven months after Minnesotans cast their ballots in a Senate election, the state's unresolved race -- the longest running recount in Minnesota history -- is now in the hands of five state Supreme Court justices. 

The justices questioned attorneys for both Republican Norm Coleman and Democrat Al Franken for about an hour Monday morning. They now have to determine whether they will grant Coleman's request to force a lower court to revisit the ruling of a three-judge panel that put Franken ahead by 312 votes.

Franken's attorney
Democrat Al Franken was represented by attorney Marc Elias during Monday's Supreme Court hearing.
MPR Photo/Tom Scheck

  Coleman attorney Joe Friedberg argued that the panel applied too strict a standard in deciding which absentee ballots to count, and that they didn't adhere to the Constitution in coming up with that tally. 

This argument relies on the fact that poll workers rejected some ballots for reasons that were not considered grounds for rejection by poll workers in other counties.  

Several of the five justices grilled Friedberg with skeptical questions. Justice Christopher Dietzen said 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.

"It seems like you're offering little more than an opening statement in this case ... a theory of the case, but no evidence to back it up."

      "When Plymouth has kicked out 75 ballots for signature mismatching and 30 counties kicked out none, we've made our case," Friedberg said. "Depending upon where you sleep, that depends whether your vote gets counted. Now, that's eminently correctable."

Friedberg wants the justices to rule that the standard for opening absentee ballots should've been more lax. He argued that because some counties used looser standards than others, the state should now allow all ballots to be counted using those looser standards. 

This is important to Coleman's case because the more absentee ballots that are opened, the better shot he has at overtaking Franken's lead. 

If the three-judge panel had used that standard, Friedberg argued, the ballot pool would've been closer to 4,000.  The panel ended up counting about 400 ballots during the seven-week recount process. 

Justice Lorie Skjerven Gildea touched on the case's core issue while interrogating Franken attorney Marc Elias.

"If we're supposed to decide who got the most legally cast votes, and there's evidence that suggests that illegally cast ballots were accepted... how can we tell who got the most legally cast votes?" Gildea asked. 

 "This is part of the problem and the frustration, candidly, with the appellant's case," Elias responded. "We have a ballot envelope. We have a copy. We know that that voter voted. ... We don't know what the facts and circumstances are other than a copy of an envelope." 

Elias argued that rejected ballots amounted to "minor variations" that are insufficient to trigger equal protection concerns. 

Coleman attorney
Joe Friedberg represented Republican Norm Coleman during the oral argument Monday before the Minnesota Supreme Court.
MPR Photo/Tom Scheck

Under questioning by the court, he said while some votes may have been wrongly counted, Coleman's side never offered specific proof they would have changed the outcome of the election. 

"I think it is fair to say that in every election in every state, in every county, in every precinct, there is some ballot somewhere where a felon voted and it wasn't picked up; where someone wasn't registered and skirted around the table, where some other irregularity took place and it wasn't caught," Elias said. "But that has never been the standard in this state or anywhere."

  "We shall take this matter under advisement and an opinion will be forthcoming," Justice Alan Page said at the conclusion of the hearing. 

The five justices are now reviewing the case, without necessarily having to give any deference to the three-judge panel's ruling. 

Their options are limited: They can confirm Franken as the victor,  or they could reopen the count as Coleman wants. It's unclear when they will issue an opinion. 

Two of the court's members are not participating in the case -- Chief Justice Eric Magnuson and Justice  G. Barry Anderson -- because they were members of the state Canvassing Board, which originally certified the results of the election. 

  If Coleman loses, he can petition to the U.S. Supreme Court, which may or may not take the case. 

After the hearing adjourned, Coleman wouldn't speculate on what he'll do if the court finds in favor of Franken.  He said the case is about ensuring that all Minnesotans get their ballots counted.

"I don't know what's in those ballots.  But everyone of those ballots would've been counted had they lived in a different area.  And whether your vote counts, shouldn't depend on where you live," said Coleman.

Franken did not attend the court session. His  attorneys have also asked the Minnesota Supreme Court to order Gov. Tim Pawlenty to sign the document certifying a winner in the election.   

  Pawlenty has hedged on whether he's obligated under Minnesota law to sign the election certificate when the court rules. 

He has suggested he may have the option of waiting to see whether the loser appeals to the U.S. Supreme Court or files another case in federal court.

(The Associated Press contributed to this report)