foley_edwardDemocrat Al Franken’s future now depends on how the three-judge panel presiding over Norm Coleman’s election contest trial handles the former Republican senator’s equal-protection claims, writes election law expert Ned Foley. Another unanimous ruling from the court (like Tuesday’s order strictly limiting the number of ballots they’ll review) will be tough for Coleman to get reversed, Foley says – if it’s also very well-argued.

Foley, an Ohio State law professor who studies disputed American elections and has tracked Minnesota’s Senate election saga closely, told the Minnesota Independent weeks ago that the state’s Supreme Court would likely decide the case — and that the three judges’ continued unanimity was critical. Coleman’s attorneys now make no bones about their intention to appeal to the Minnesota Supreme Court for help in reversing Franken’s 225-vote recount victory. 

Tuesday’s ruling, which Foley calls “unsurprising,” means the only legal issue still in play is whether Minnesota’s method of counting votes is so poor it violates the U.S. Constitution’s guarantee of equal protection under the law. Here’s Foley’s bottom line:

Coleman’s Equal Protection claim is hardly a slam-dunk winner. But various possible refined and narrower versions of this argument, depending on the strength of the relevant evidence, are not obvious slam-dunk losers, either, under Bush v. Gore. For this reason, it remains important how the three-judge court explains its final ruling on the Equal Protection claim, even if all observers expect the court to rule against Coleman.