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.

(Photos: The UpTake)

In what could be the last time the forces of Al Franken and Norm Coleman clash within the same four walls, yesterday’s drama at the Minnesota Supreme Court didn’t disappoint.

The star power alone was enough to short out the huge, eye-like chandelier that hung over the proceedings.

First there was Coleman himself, greeted at the sidewalk by a clutch of cameras, making his courtroom entrance (with entourage) 25 minutes before the proceedings. No longer on crutches and moving with seeming ease, Coleman schmoozed with both sides. “Excellent job, by the way,” he purred to Franken lawyer Kevin Hamilton.

Associate Justice Alan Page, a former Minnesota Viking and the only justice to gain his seat on the bench via election, held the reins in the courtroom in the absence of recused Chief Justice Eric Magnuson.

Glasses propped above his eyebrows and wearing a brightly colored bowtie, Page asked the most questions, and the most basic: “Do we have authority to do anything here?” “Where is the purposeful and and intentional discrimination to create the equal protection claim?”

Page had picked the three lower-court judges who presided over the election contest trial and found Franken the 312-vote victor. Coleman was in court to ask Page and his colleagues to reject that ruling and return the case to the three-judge panel for more ballot-counting.

Each side was allowed three attorneys at its table; Coleman took a chair at his and sat studying the justices’ reactions as his lead lawyer, Joe Friedberg, parried their interruptions and inquisitions. To an inexpert eye, the court didn’t seem to be giving up many clues by their facial expressions and body language, but Coleman’s gift with people likely includes special skills at reading them.

Friedberg was Coleman’s point man and justices’ lightning rod. A prodigious trial attorney with zero election-law experience, Friedberg kept his famous folksiness mostly in check — beyond an opening line that ostentatiously undercut a Coleman miscue in front of the same five justices last December (before Friedberg joined the team).

“Minnesota is quite different from other states,” Friedberg declaimed, an approach 180 degrees from that of Roger Magnuson (no longer with the team) who tried to tell the justices that Minnesota suffered from Florida’s flaws in the 2000 presidential election.

Friedberg had a ready reply, if not always a satisfactory one, for the many questions directed his way. (”Absolutely, 100 percent, unequivocally: No!” was one.) But the expressive Friedberg seemed glum from the outset, perhaps in anticipation of what proved to be a brutal grilling from the bench.

Doug Kelley, Coleman’s attorney in another matter (the civil suits alleging that donor Nasser Kazeminy steered him unreported cash), made a surprise appearance, joining legal clerks and the former senator’s deep bench in chairs behind the main table.

A former assistant U.S. Attorney with a lot on his plate (handling the dissolution of Tom Petters’ empire for one), Kelley nonetheless showed himself capable of the most delicate of finger-waves as he headed back to Coleman’s side of the room following a round of introductions to the Franken team.

Coleman had more attorneys present, but the legal team for his Democratic opposite formed a more cohesive group on the courtroom floor. Before the proceedings all but Marc Elias (Franken’s presenter) joked and goofed; afterwards, the four huddled with smiles all around.

Norm Coleman and Al Franken (Photos: WDCpix.com)

Every ballot tells a story. Or maybe it doesn’t.

That’s the debate that attorneys for Al Franken and Norm Coleman grappled with in oral arguments this morning before the Minnesota Supreme Court in the U.S. Senate election contest. Following a seven-week trial — which featured 142 witnesses and roughly 20,000 pages of legal documents — a three-judge panel determined that Franken won the election by 312 votes.

Joe Friedberg, Coleman’s lead attorney, argued today that there were widespread disparities across the state among which absentee ballots were rejected. He wants the case remanded to the three-judge panel so that roughly 4,400 additional absentee ballots can be considered for inclusion in the vote tally. In particular, Friedberg argued that Franken-friendly areas of the state applied a more lenient standard in accepting ballots.

“If people from around the state had all cast their ballots in Minneapolis or Ramsey County, there’d be half as many rejected ballots,” Friedberg said. “That’s what the numbers show.”

But Marc Elias, Franken’s lead recount attorney, countered that some variance in the election system is necessary to allow for efficient and effective elections. He further stated that Coleman had failed to present evidence of specific ballots that were improperly rejected.

“Don’t tell us there are some 4,400,” Elias said. “Tell us which are the ballots.”

Most legal analysts believe that Coleman faces an extremely difficult task in convincing the Supreme Court to overturn the ruling of the panel. Perhaps indicative of that, Friedberg faced persistent interruptions and questioning throughout his arguments.

“I am very bothered by your offer of proof,” Justice Paul Anderson stated at one point, echoing the Franken camp’s assertion. “They’re basically just lists, lists of names.”

Friedberg countered that the trial court failed to allow them to introduce the specific evidence necessary to make their case. “I couldn’t get it in, and I tried to the point where I strained the court’s patience.” he said. “I didn’t want to go any further than that.”

Justice Alan Page questioned whether Coleman had reversed his legal arguments, citing a previous court document in which he’d argued for a strict enforcement of the state’s standards for what absentee ballots should be accepted. “Is that consistent with the argument you make today?” Page asked.

“No sir, it’s not consistent,” Friedberg acknowledged. “When we realized that whether your vote counted depended on where you lived, we changed.”

Elias received slightly more delicate treatment from the justices. He argued that the universe of contested absentee ballots is only about 300 — or slightly less than the lead currently held by Franken.

“It would still be impossible for the appellants to make up the difference,” Elias said. “Al Franken received more lawfully cast ballots on election day than Senator Coleman.”

Justices Christopher Dietzen and Lorie Skjerven Gildea were most vigorous in pressing Elias on the issue of whether illegal ballots had been accepted. In particular, Dietzen queried Franken’s attorney on ballot envelopes that lacked a witness signature. Elias conceded that it’s likely some ballots were improperly counted, but that such judgments can only be made after considering a full history of the ballot.

“We don’t know the story behind that ballot,” he said, noting that there could have been a replacement ballot. “There are reasons why the election officials accepted and rejected ballots.”

Friedberg, however, questioned the narrative value of each individual ballot, arguing that the disparities in the system were systemic. “Every ballot doesn’t tell a story,” he said.

Coleman has vowed to continue pursuing the legal contest and has been egged on by the Republican leadership in Washington. If Franken takes office he would become the 60th Democratic senator, giving President Obama a filibuster-proof majority.

Franken has asked the Supreme Court to order Gov. Tim Pawlenty to issue an election certificate, thus paving the way for him to be seated in Washington. But the Republican Governor has suggested that he might not sign a certificate even if the state’s top court rules in Franken’s favor.

Only five justices are hearing the case. Two justices, Eric Magnuson and G. Barry Anderson, recused themselves owing to their participation in the State Canvassing Board that initially certified Franken the winner back in January. The justices gave no indication when they would rule on the matter.

“We shall take this matter under advisement and an opinion will be forthcoming,” Page said at the close of the hearing.

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.