Three statewide candidates are bucking longstanding tradition in the lead-up to Tuesday’s election: Judicial candidates Dan Griffith, Tim Tingelstad and Greg Wersal are openly weighing in on issues that could come before them if elected, and all three have endorsements by major political parties. Coming from tea party backgrounds, they have aligned themselves with the Republican Party, the Minnesota Family Council and, in one case, the Constitution Party of Minnesota, and fitting the conservative bent of those groups, the trio has opined about contentious social issues from abortion and homosexuality to the role of Christianity in schools and courtrooms. While these activities are legal, critics say that they could undermine the impartiality and nonpartisan nature of the judiciary.

Dan Griffith: Tea party activist opposes ban on religion in schools, government buildings

Griffith is running against incumbent judge Larry Stauber for the Minnesota Court of Appeals and he’s one of three candidates to answer a judicial questionnaire by the Minnesota Family Council.

Griffith has the endorsement of both the Republican Party and the Constitution Party, and he’s appeared at fundraisers for Minnesota tea party events, including a chartered bus to attend Glemn Beck’s Restoring Honor rally in Washington.

Dan Griffith

The Constitution Party of Minnesota is particularly conservative in terms of social issues, and its platform advocates making homosexuality illegal. The party also believes that English should be the official language in Minnesota and that “schools, hospitals, social services agencies, government offices, etc. should not be required to provide interpreters for clients (other than the hearing disabled). Individuals in need of these services should provide for their own assistance.”

One key point of Griffith’s platform is reforming judicial elections. In most cases, judges retire before their term is up, allowing the governor to appoint a replacement before an election. He wants to see changes to that system so that all judges are elected and not appointed. The problem, he says, is that all judges on the appellate court have been appointed: even if they were elected following their appointment, they still were not chosen by the voters.

“If I am granted the privilege of serving, I will be the first person in the history of the Appellate Court in Minnesota to be placed on the bench in the manner intended by our Constitutional framers,” Griffith told the Minnesota Independent. “That fact alone will be a continual reminder that I am a public servant, not above the people.”

But Griffith is also a servant of God. An evangelical Christian, he indicated on a Minnesota Family Council questionnaire (PDF) that he opposes court decisions that allow for public funding of abortion, prohibit school prayer and ban the posting of the Ten Commandments on public property. He agreed with court cases that banned adoption by same-sex couples and assisted suicide.

Griffith’s opponent, incumbent Judge Stauber, says that justices identifying with social issues or political parties is detrimental to an impartial judiciary.

“It’s inappropriate for any sitting judge to give their personal views on any position,” he said. “To stick your neck out as a judge on the issues, wouldn’t you have to disqualify yourself if a case on those issues came before you?”

Stauber was appointed by Gov. Tim Pawlenty to the appellate court in 2008 and is facing his first election. Griffith has run for the bench before in 2004, 2006 and 2008 (when he ran for the Minnesota Court of Appeals). His best showing came in 2006 with 44 percent. In the last election, he got just over 40 percent.

Griffith disagrees with Stauber: “Expressing an opinion on decided cases with set facts is appropriate and no different than the judge who decided the case expressing his or her opinion when they wrote it.”

Stauber also took issue with a quote that Griffith often uses from John Jay, the first Chief Justice of the US Supreme Court who said, “We should elect of all people Christians.”

“To me, we’ve had some great Jewish jurists in Minnesota,” Stauber told the Minnesota Independent. “I don’t know if we’ve had any Muslim jurists yet, and I’m sure we’ve had some great atheist jurists. What does that quote tell the public about their judges?”

Griffith defended his use of Jay’s quote. “I think he was illustrating that if a person believes they are accountable for their actions in another life respecting their conduct in this, then they make better public servants,” he said. “Why? Because such a person believes even if they can fool everyone here (any politicians come to mind), they cannot fool God and that will affect their actions here.”

He added, “It should not matter what a judge’s personal beliefs are.”

Stauber, an Army veteran, says he’s been opposed to mixing partisan politics with the judiciary for a long time. “That’s been my position even before I was a judge,” he said. “I am nonpartisan.”

Stauber has trounced Griffith on recent “plebiscites,” which are internal polls of state lawyers about their preferences this election. For example, the International Falls Bar Association — which is based in Griffith’s hometown — voted unanimously for Stauber. The Minnesota State Bar, for example, gave Stauber 89 percent and Griffith 11 percent.

Greg Wersal

Greg Wersal: Fought to overturn ban on party endorsements, fundraising in judicial races

Griffith is one of three judicial candidates that are backed by a new political action committee called Justice in Minnesota. Greg Wersal is another.

Wersal is running for Minnesota Supreme Court and has been fighting rules that prevent judicial candidate from getting involved in party politics. Backed by the Republican Party of Minnesota, he’s won several important court cases. In 2006, Wersal challenged Minnesota’s ban on party endorsements for judicial candidates. The case went to the U.S. Supreme Court, and he won. The Minnesota GOP now backs candidates and is the only major party in the state to inject partisan politics into the judicial election system.

Wersal won a second big case in July when he sued the state to overturn a ban on judicial candidate fundraising. Prior to July, candidates could not solicit funds directly. Wersal’s win means that political money can flow into judicial races. In addition, the court also ruled that judicial candidates can endorse other candidates for office.

A social conservative, Wersal opposed a Minnesota court decision which overturned sodomy laws. He’s been a popular tea party speaker around the state, and is endorsed by the Republican party. While he doesn’t mention his faith as publicly as Griffith, he answered the Minnesota Family Council’s controversial questionnaire answering virtually the same as Griffith except one instance: Wersal opposed overturning sodomy laws, Griffith agreed they were unconstitutional.

Wersal is challenging Minnesota Supreme Court Justice Helen Meyer.

Tim Tingelstad

Tim Tingelstad: “Judges must be God-fearing men and women”

Another candidate for Supreme Court is Tim Tingelstad, who is very passionate about bringing God to the bench. He’s also Republican party endorsed .

“As God’s Word has been removed from our public lives, the resulting darkness has led to our present social disorder and political divisions,” his website, Highest Hill, reads. “The correction of these problems will only begin when the Light of Truth is returned to our land’s highest hills, the Supreme Courts. Until our highest courts return to an acknowledgment of the existence of God and His Truth, the people will continue to walk in the confusion of darkness.”

As the Minnesota Independent reported in 2008, he believes “judges must be God-fearing men and women.”

The separation of church and state, Tingelstad argues, is a myth. Justices should rule from the “Word of God” first, and from sources such as the constitution, statute and case law second.

Tingelstad is challenging Minnesota Supreme Court Justice Alan Page.

Partisanship in judicial races presents significant issues for voters, writes George W. Soule for the William Mitchell Law Review. In is 2008 paper, Soule analyzed the campaigns of Wersal and Tingelstad following the court decision that opened up judicial elections to partisanship.

Partisan judicial elections focused on the hot-button issues of the day may also deceive voters. Minnesota courts, especially district courts, rarely if ever issue rulings on issues such as abortion, Campaigns based on these gun control or same-sex marriage issues may disingenuously distract voters from real issues, such as qualifications, experience, demeanor, and philosophy. In addition, a candidate who takes positions on divisive issues may be disqualified from presiding over proceedings involving those issues. Turning judicial elections into partisan battlegrounds, targeted by special interests with large war chests, may provide a significant disincentive for prospective judicial candidates. Many lawyers who would be good judges have little political background and are wary of running a high-profile election campaign. They want to focus on being good judges, not politicians. If elections turn out to be partisan, expensive battles, many qualified judicial candidates may be deterred.

Soule wrote his paper well before the tea party became a political reality and a source of political support for three candidates for the bench.

Al Franken (Photo: Aaron Landry)

**UPDATED**
Minnesota’s interminable U.S. Senate race is finally over. Nearly eight months after election day, the Minnesota Supreme Court ruled today that Democrat Al Franken prevailed by 312 votes over Republican Norm Coleman. The ruling prompted Coleman to finally concede the contest. Gov. Tim Pawlenty announced shortly thereafter that he will sign an election certificate for Franken today.

“Al Franken received the highest number of votes legally cast and is entitled … to receive the certificate of election as United States Senator from the State of Minnesota,” the court concluded.

In plain language, the five-member court meticulously shot down Coleman’s arguments as to why a three-judge panel erred in determining that Franken won the contest. In particular, it found fault with the former senator’s claim that local election officials violated the U.S. Constitution’s Equal Protection Clause by utilizing different standards in determining which absentee ballots should be rejected.

“Coleman neither claims nor produced any evidence that the differing treatment of absentee ballots among jurisdictions during the election was the result of intentional or purposeful discrimination against individuals or classes,” the court noted. “Nor does Coleman claim that the trial court’s February 13 order, establishing certain categories of ballots as not legally cast, was the product of an intent to discriminate against any individual or class.”

The court also rejected Coleman’s contention that he was egregiously harmed by the trial court’s unwillingness to examine some evidence of mishandled ballots.

“We conclude that the trial court ruled correctly that Minnesota law provides no remedy for wrongly accepted absentee ballot return envelopes once those envelopes have been opened and the ballots inside deposited in the ballot box,” the opinion stated.

Shortly after the ruling was released, Coleman called a press conference at his St. Paul home and announced that he had phoned Franken to congratulate him on his victory. “Further litigation damages the unity of our state,” he said.

Coleman’s case from board to panel to Supreme Court

The extraordinarily close election — with roughly 2.4 million ballots cast, and a margin of difference of less than 0.1 percent — dragged on for more than seven months as various election officials and judges sought to determine the accurate winner of the contest. Norm Coleman initially emerged with a precarious 725-vote lead. But even before a mandatory statewide recount began, the Republican’s lead began to wither. The reason? Mistakes made by local officials on election night. For instance, Franken gained 100 votes in Partridge Township when election officials there determined that they’d mistakenly entered the Democrat’s vote tally as 24 on election night instead of 124.

By the time local election officials and campaign volunteers began the tedious, state-mandated process of re-counting every single ballot by hand, Coleman’s lead had shrunk to just 215 votes. That margin continued to dwindle throughout the month-long process, which was overseen by a four-judge panel appointed by Minnesota Secretary of State Mark Ritchie. Finally on Jan. 5, the Statewide Canvassing Board unanimously ruled that Franken had won the contest by 225 votes.

But this would prove to be merely another phase in the contest. Coleman appealed to the state courts, as is his right under Minnesota’s election laws. His primary argument: local election officials used wildly varying standards in determining which absentee ballots were included in the vote tally, a violation of the U.S. Constitution’s Equal Protection Clause.

A three-judge panel, picked by Chief Justice Eric Magnuson, spent seven weeks hearing the case. They reviewed 19,000 pages of legal pleadings, 1,717 individual exhibits and testimony from 142 witnesses before ratifying Franken’s victory. The margin: 312 votes.

Coleman then appealed to the Minnesota Supreme Court. From the outset, legal observers argued that Coleman faced grim odds in seeking to overturn the trial court’s decision.

Today’s ruling ratified that prevailing sentiment. In addition to rejecting Coleman’s arguments with regards to the Equal Protection Clause, the court shot down the Republican’s contention that some ballots were double-counted and that 132 missing Minneapolis ballots were wrongly included in the final vote tally.

“The ballots are missing, but Coleman introduced no evidence of foul play or misconduct, and the election day precinct returns are available to give effect to those votes,” the ruling notes. “We hold that the trial court did not err in ruling that the election day precinct returns for Minneapolis Ward 3, Precinct 1, were properly included in the tally of legally cast votes.”

Coleman faces an uncertain political future. Some have suggested he might be eyeing Pawlenty’s job — a post he unsuccessfully sought in 1998. But the nasty, multimillion-dollar 2008 campaign, followed by the never-ending election contest, has left both Franken and Coleman bruised.

The Supreme Court case was heard by justices Alan Page, Paul Anderson, Helen Meyer, Christopher Dietzen and Lorie Skjervern Gildea. Justices Eric Magnuson and G. Barry Anderson recused themselves from the case because they both served on the Statewide Canvassing Board that initially certified Franken the winner.

Hayden, an appointee of former Gov. Rudy Perpich (DFL) is from Stearns County in the state’s Seventh Judicial District. Marben, of Pennington County, was appointed by former Gov. Jesse Venutura (Independence Party). Reilly is a Hennepin County judge in the Fourth District and an appointee of then-Republican Gov. Arne Carlson — who in his current incarnation as an independent has said that Coleman should concede.

Al Franken won the U.S. Senate contest by 225 votes. That was the determination that the five-member State Canvassing Board put their signatures to on Monday. Franken duly declared victory, pronouncing himself the “next senator from Minnesota.”

But as subsequent events have made abundantly clear that doesn’t mean the never-ending Senate contest is over. Indeed the legal contest filed by Norm Coleman’s campaign on Tuesday means it could still drag on for months. Here’s a quick primer on what will unfold in the coming weeks.

Why isn’t this thing over?

Under state law Coleman has the right to contest the legitimacy of the election in court and he has chose to do so. (See the relevant statute here.)

What is the crux of Coleman’s argument?

His campaign alleges widespread inaccuracies in vote tabulations across the state during both the general election and the recount. In Minneapolis, for instance, Coleman argues that 133 ballots that are thought to have been lost were wrongly included in the recount. The Republican’s campaign also argues that in some instances (roughly 130 to 150) duplicate and original ballots were both counted — thus resulting in an individual receiving two votes. But the biggest pool of votes at stake in the election contest will be 654 ballots that the Coleman campaign maintains were wrongly rejected by local election officials. These ballots have twice been examined by election judges and deemed unacceptable, but the Coleman campaign continues to assert that they were improperly tossed out from the count. (Read the 204-page lawsuit here.)

Why is Coleman challenging so many different types of ballots?

He has a lot of ground to make up. The 225-vote margin might seem insignificant in a total universe of nearly three-million ballots, but the lawsuit will only focus on ballots where improprieties are alleged. Take the allegedly double-counted ballots, for instance. Because they are concealed in an election envelope, there is no way for the Coleman campaign to know which candidate those voters supported. In other words, even if they are ultimately thrown out it’s uncertain who would benefit and by what margin.

“From a numerical point of view he has to contest absolutely everything,” says David Schultz, a political science and law professor at Hamline University. “If he doesn’t he may not have the numbers to win. … He needs the perfect storm of law at this point to win.”

So what happens next?

Supreme Court Justice Alan Page will select a three-judge panel to hear the election contest.

Why Page?

Under state law the Chief Justice of the Supreme Court is charged with naming the three-judge panel. But because Eric Magnuson served on the State Canvassing Board he has recused himself from this duty. Page is the next highest ranking justice.

What are the guidelines for selecting the three-judge panel?

They can be plucked from any level of the Minnesota court system. In other words, Page could select an Anoka County District Court Judge, a jurist from the Minnesota Court of Appeals and one of his fellow Supreme Court justices. He could also pick himself.

When will this happen?

Only Justice Page can say for sure. State law does not specify a time-line. Presumably he will make the selections quickly.

What do we know about Justice Page’s politics?

Most political observers believe him to be a Democrat. Football fans recall his days as a star defensive end for the Minnesota Vikings and his election to the Pro Football Hall of Fame. He was initially elected to the state’s top court in 1993 and has been re-elected by wide margins twice since. A search of the campaign contribution database maintained by the Center for Public Integrity reveals no political donations made by Page over the last two decades, although his wife did contribute $1,000 to Hillary Clinton’s presidential campaign in 2007.

Does this mean the case won’t end up in federal court?

No — although most legal observers deem this possibility remote. The Coleman campaign has cited federal issues in its legal filings, most notably the Equal Protection Clause of the Fourteenth Amendment, and has referenced the U.S. Supreme Court’s infamous Bush v. Gore ruling. Clearly they want to preserve the option of going federal with a lawsuit.

So when will this finally be over?

Nobody knows. Most political observers have speculated about a roughly two-month timeframe. But legal expert Ron Rosenbaum, speaking on KFAN (1130-AM) yesterday, poured cold water on that relatively quick scenario. “I think those people are dreaming,” he told host Dan Barreiro. “This thing could easily last longer than you even want to imagine, if permitted, and I think there’s a reasonable chance that could happen.”

A divided Minnesota Supreme Court ruled today that wrongly rejected absentee ballots should be counted in the U.S. Senate race. But the process ordered by the three-justice majority mandates that the campaigns of Sen. Norm Coleman and Al Franken agree that a ballot was improperly invalidated before it is included in the final tally.

The opinion was authored by Judge Helen Meyer, with justices Lorie Skjerven Gildea and Christopher Dietzen joining her in the majority. Justices Alan Page and Paul Anderson wrote strongly worded dissents, arguing that the ruling is inconsistent and inadequate for ensuring that every properly cast vote is counted.

The majority opinion concludes that local election officials do not have the authority under Minnesota law to amend their vote tallies to include improperly rejected absentee ballots. However, it then orders the two campaigns, the Secretary of State’s office and all county canvassing boards to create a process for determining which ballots were wrongly invalidated. If all parties agree that a ballot should be included in the final tally it will be counted. The ruling states that this process must be concluded by 4 p.m. on Dec. 31.

Roughly 1,500 absentee ballots may have been improperly rejected by local elections officials. With the race extraordinarily tight, the dispute over such ballots could ultimately determine the outcome of the contest.

Justice Page offered a blistering critique of the majority opinion. After first quoting Joseph Stalin (“I consider it completely unimportant who … will vote, or how; but what is extraordinarily important is this — who will count the votes and how”), he argued that the court’s ruling will disenfranchise voters. “The court’s order may seek the peaceful way out by asking the campaigns to agree on improperly rejected ballots,” Page wrote. “But the order does not guarantee that the candidates and their political parties will agree on any rejected ballot. Instead the court’s order will arbitrarily disqualify enfranchised voters on the whim of the candidates and the political parties without the benefit of the legislatively authorized procedures” under state law.

Justice Anderson countered with a quote from British playwright Tom Stoppard (“It’s not the voting that’s democracy, it’s the counting”) and was only slightly more reserved in voicing his disagreement with the ruling opinion. “I conclude that the majority’s opinion is flawed because it misreads Minnesota’s election laws, is internally inconsistent, and has essentially inserted this court into a political thicket based on a premise that lacks a basis under the law,” he wrote.

Despite the ruling’s convoluted prescription for including wrongly rejected absentee ballots, the Franken campaign praised the court’s actions. “We are pleased that the Supreme Court has rejected Norm Coleman’s attempt to win re-election by throwing out the lawful votes of Minnesotans who did everything right,” Marc Elias, the Franken campaign’s lead recount attorney, said in a statement.

The Supreme Court ruling came at the end of another long day before the state canvassing board. The five-member panel plowed through 642 contested ballots, providing a considerable boost to the Franken campaign. According to the Star Tribune’s independent analysis, the Democrat pulled to within just five votes of the incumbent — down from a 360-vote difference at the start of the day. With roughly 400 ballots still to be considered by the canvassing board, and the bulk of them being challenges lodged by the Coleman campaign, it appears likely that Franken will be ahead when this stage of the recount concludes. (The overwhelming majority of challenges have so far been rejected by the five-member panel.)

The canvassing board must still wrestle with one thorny matter: what to do about ballots that the Coleman campaign believes were counted twice. The canvassing board debated the question at the close of today’s session and seemed strongly inclined to avoid the quagmire of determining whether both duplicate and original ballots were counted in some instances. “I am terribly uncomfortable placing my imprimatur on something that I think basically requires more facts than I’ve got,” said Eric Magnuson, Chief Justice of the Minnesota Supreme Court and a member of the canvassing board.

The panel will make a final ruling on the matter when they reconvene tomorrow morning. But this issue (like so many others in the arduous recount process) looks like it will ultimately end up in the courts.

Regardless of what happens, Secretary of State Mark Ritchie vowed that the canvassing board will finish ruling on disputed ballots tomorrow. “People have agreed to stay until we’re done,” he said.

According to John Kostouros, communications director for the Court Information Office, this means that they have recused themselves from the case. Magnuson and Anderson are both serving on the statewide canvassing board, charged with overseeing the recount, which is named as a respondent in the case.

The lawsuit, filed by Sen. Norm Coleman’s campaign, seeks a temporary restraining order to stop local election officials from counting improperly rejected absentee ballots. Last week the canvassing board unanimously recommended that counties proceed with counting such ballots. The case is slated to be argued before the Supreme Court tomorrow afternoon.

Both Magnuson (the Chief Justice) and Anderson were appointed by Republican Gov. Tim Pawlenty. Their recusal from the case leaves five jurists to hear the matter: Alan Page, Paul Anderson, Helen Meyer, Lorie Skjerven Gildea and Christopher Dietzen. Gildea, Paul Anderson and Dietzen were all appointed by Pawlenty. Meyer was appointed to the Supreme Court by Independence Party Gov. Jesse Ventura in 2002; Page was elected to his post in 1992.