Released to coincide with President Obama’s health care speech last night, the ads will run in Peterson’s district as well as those of Reps. Mike Ross, D-Ark., and Baron Hill, D-Ind., and hinge on comments made about Blue Dog Democrats by Rep. Pete Stark. Late last month the California Democrat criticized moderate party members who pushed for revisions to the Democratic health care reform package: “They’re for the most part, I hate to say brain dead, but they’re just looking to raise money from insurance companies and promote a right-wing agenda that is not really very useful in this whole process.” The ads conclude: “Tell Congress: No government-run health care.”

The commercials, which will also air in Washington, D.C., were produced by a group that has ties to both the Swift Boat Veterans for Truth ads in 2004 and the Willie Horton ad in 1988. Two AFF media consultants are linked to that group. One should be familiar to Minnesotans: Ben Ginsberg, one of Coleman’s election contest lawyers, was, at least as of last summer, legal counsel for the group. He served as chief outside counsel to the Bush-Cheney campaign, but resigned in August 2004 when it was revealed that he was also providing advice to Swift Boat Veterans for Truth, which sponsored error-riddled attacks on the military service record of 2004 Democratic presidential nominee John Kerry.

Last March the DFL filed a formal complaint with the Federal Election Commission over AFF’s pro-Coleman ad, alleging the noprofit violated federal election law by failing to register and report as a political committee. The FEC ruled in AFF’s favor.

Photo: Duke Law

Republican attorney Ben Ginsberg is helping usher Norm Coleman’s equal-protection claims to a high court (Minnesota’s), just as he did with another client, George W. Bush, and another high court (the United States’) eight years ago. Indeed, Coleman’s yet-to-be submitted brief is expected to cite Bush vs. Gore, as have his earlier briefs presented (unsuccessfully) to the state Supreme Court and the election-contest court. Maybe there’s a reason for that. In 2006, Ginsberg admitted to a law school audience:

Just like, really, with the Voting Rights Act, Republicans have some fundamental philosophical difficulties with the whole notion of Equal Protection.

I dipped into the video of Ginsberg’s hourlong talk in 2006 at Duke University School of Law, and found a few other snippets of interest.

Like Al Gore, Ginsberg was a reporter before going to law school and getting involved in politics and government (at the 6:15 mark):

My first job out of college was an internship on the Boston Globe in the summer of 1974, which was noteworthy not only for Watergate which was completely immaterial to my life, but for the summer that they started forced busing in Boston — an interesting notion of a government example of a program applied to real life. … I had red hair and so the guys who ran the Boston Globe assumed I was Irish and stuck me on the streets of South Boston to cover the riots in the neighborhoods. And that was kind of an eye-opening experience, in terms of government and people and well-intentioned programs that maybe don’t work quite exactly right. Which provided sort of an analytical tool for the rest of — I mean, I got searing memories of things from watching an experience like that take place.

About his first recount, in Indiana in 1984 (11:31):

Republicans lost that recount. The Democrats in the House of Representatives decided that they just had to have one more seat to try and put Republicans in their place. I remain convinced to this day it was a stolen election. It turned out being by four votes. It was in restrospect the event that galvanized a very sleepy Republican minority in the House of Representatives into taking a slightly more militant approach to politics in the House of Representatives. One of the people who at the time in 1984 was just a back bencher but was thoroughly outraged by all this was one Newt Gingrich, who took that feeling that Republicans in the House had and pressed it into a real change of attitude that ultimately I think led to the Republican takeover in the House in 1994.

As counsel to the National Republican Congressional Committee, Ginsberg came to Minnesota for the 1986 recount between incumbent Republican U.S. Rep. Arlan Stangeland and his DFL challenger (then unsuccessful, now U.S. Rep.) Collin Peterson (13:54):

After two years there was another recount — and recounts really do change lives — there was another recount, in Minnesota, that I participated in. Low and behold, the Minnesota senator [Rudy Boschwitz] who put a lot of people into that House recount to help his colleague was taking over as the head of the National Republican Senatorial Committee. They asked me if I wanted to do that job … so I went over to the Senate for two years.

Ginsberg on his successful 1989 interview to work for the Republican National Committee (15:25):

There is the great Lee Atwater with his feet propped up on a desk, with a book of Great Grade B Movies of Our Time that he’s reading. And he goes, “Well, I kinda know you. What I really want to know is what you think of Pia Zadora.” … So Atwater and I spent 20 minutes talking about Pia Zadora and John Waters movies.

At the time Ginsberg made this speech, the fact that courts hadn’t yet cited Bush vs. Gore as precedent was a point of pride, and proof that the ruling hadn’t done damage (39:50):

Of course Bush vs. Gore is probably the most notorious election-law cases that’s ever gone up to the (U.S.) Supreme Court. We did include equal protection as one of the core arguments in that case, and it was somewhat contentious as an issue as the justices talked about it. … At the time, people were —  the commentators were very adamant that it would set a terrible precedent for the future and really did harmful things to the Supreme Court as an institution. At the end of the day, Bush vs. Gore has not been cited as precedent, or binding precedent, in any case in the four years since then. And I don’t think you can credibly make the argument that the U.S. Supreme Court has lost any of its moral force because of that case. And so George Bush became president and that indeed becomes kind of the mother of all cases.

“We will never know who won,” Norm Coleman said Wednesday. That’s after seven Minnesota judges — three on Monday and four in January — concluded that Al Franken won Minnesota’s 2008 election for U.S. Senate. His was a “close victory,” the Democrat conceded on Monday. But Coleman — now down by 312 votes — isn’t buying it. “Our system isn’t geared for this kind of closeness.”

Still, some precision is possible in politics, as Gawker.com suggested Wednesday with its two-word description of Gov. Tim Pawlenty: “Amiable prick.”

The first word describes Pawlenty’s friendly demeanor — as displayed, for example, during his appearances on MSNBC’s “The Rachel Maddow Show,” where he unveiled his controversial intention to mull over a future state Supreme Court ruling on Coleman’s lawsuit before he signs an election certificate.  

The second captures the other side of T-Paw’s essence, on exhibit most recently during his appearance Monday on Minnesota Public Radio’s “Midday” program. He fairly spit out the word “welfare” before offering this grousing aside: ”By the way, Minnesota’s in danger, I believe, of becoming one big social service agency.”

More imminent is the danger that Minnesota will become one big election-contest courtroom, as Coleman takes his complaints about the election to the state’s high court.

Coleman made his “we will never know” statement to the St. Paul Pioneer Press editorial board, writes reporter Rachel Stassen-Berger (in an article that runs separately from the newspaper’s editorial, which also appears this morning).  

Coleman also told the PiPress board that the question for his legal team is not whether to file a petition for an appeal to the state Supreme Court. Rather, he said, it’s “the scope of the appeal. Do we file on every point or do we appeal on some points?”

On that point Coleman will almost certainly get sage advice from lawyer Ben Ginsberg (a veteran of the 2000 Bush v. Gore case), who asserts that a winner is impossible to determine unless the state accedes to Coleman’s Constitutional argument that its election system failed to treat voters in different counties equally.

“You cannot know who won this election without coming to grips with the equal protection issue,” Ginsberg warned.

RELATED:
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“We are extremely pleased with the court’s final opinion,” Elias told reporters. “Al Franken won this election fair and square. Al Franken won this election because more Minnesotans voted for him than for Norm Coleman or for any other candidate.”

Elias (pictured) briefed reporters just two hours after his counterpart for the Coleman camp, Ben Ginsberg, vowed to appeal the ruling to the Minnesota Supreme Court. The Republican’s legal team has also hinted that they may try to take the case into the federal courts as well. But Elias pooh-poohed their chances at success.

“It’s extremely unlikely that the U.S. Supreme Court would have reason to take this case,” Elias said, noting that the nation’s top court has only heard two election cases in recent memory. “If former Sen. Coleman chooses to appeal to the Minnesota Supreme Court, I think that will be the end of the road for him.”

Elias was hesitant to give an estimate of when the contest will likely conclude, but he expressed hope that the state Supreme Court will handle any appeal in an expedited manner. “Based on past history I think it will move relatively quickly,” he said. “I think the estimates that are in weeks are more accurate than the estimates that are in months.”

Coleman’s camp has been promising an appeal for days now as it became clear that he was going to lose the initial state court contest. But attorney Ben Ginsberg repeated this pledge in a conference call this morning. “The point is that there are still thousands of voters who have not had their votes counted whose votes should be counted,” he told reporters.

At the heart of the appeal will undoubtedly be roughly 4,400 absentee ballots that the Coleman camp continues to insist were improperly rejected. Ginsberg contends that different standards were utilized by local election officials across the state to determine which ballots should be legally accepted, a violation of constitutionally mandated equal protection standards.

“As the record in this trial shows, the volume and significance of the equal protection violations is great enough to turn the results of this election,” Ginsberg said. “You cannot know who won this election without coming to grips with the equal protection issue.”

Ginsberg also argued that the ruling by the three-judge panel wrongly ignored double counting of ballots, as well as 132 Minneapolis ballots that were lost but still included in the final vote tally. “Regrettably, this court decided to take expediency over accuracy and never wanted to kick open the hood and look at the engine,” he said.

Coleman now has 10 days to file a notice of appeal. Ginsberg made it clear that they’ll be in no particular hurry. “I would be surprised if it’s before next week,” he said of the filing.

Both the Republican Party of Minnesota and the state’s Democratic-Farmer-Labor Party held press conferences yesterday (see videos below) and steered supporters online to give money, sign petitions, and, in the DFL’s case, watch this video at its new GiveItUpNorm.com Web site:

The Crookston Daily Times joined the Star Tribune, the Grand Forks Herald and the Albert Lea Tribune by wading into the fray with an early end-of-trial editorial, titled “Coleman just wants to win, that’s all“:

Coleman is a politician, so his goal is to win. Politicians seek elected office, after all, so if you’re not elected, you’ve failed a basic requirement of the job. He didn’t want a bunch of votes counted, but now he does. Surprised? Lest we forget, Coleman used to be a Democrat, and then he switched parties. Hey, it happens.

So let Coleman appeal. Let the politician desperately trying to remain in office leave no stone unturned in his effort to win. For politicians, winning isn’t just everything, after all, it’s the only thing.

Pioneer Press reporter Rachel Stassen-Berger, last seen jawing with Coleman attorney Ben Ginsberg after a testy Tuesday courthouse press conference, has since backed up her rhetoric in an article today and a Political Animal blog post yesterday. She refutes Ginsberg’s (and Coleman’s) contention that the Republican would win if only more absentee ballots were opened from GOP-leaning precincts:

But, according to a Pioneer Press analysis of the absentee ballots that have been counted during the recount and the contest, the logic that there is Coleman gold in the ballots from GOP areas fails. Of the 1,284 absentee ballots that have been counted since Election Day, Coleman underperformed compared to the political tilt of the cities and counties from which the ballots came.

Media Matters’ call for the media to at long last call out Coleman as a sore loser (as they did much earlier with Al Gore in the shorter-lived 2000 presidential recount) doesn’t go far enough for Ernest Canning, an attorney writing with Brad Friedman at BradBlog. For Franken, they say, “It’s not a ‘lead’, it’s a ‘win,’” and reporters and commentators should stop saying Coleman is trailing in votes and start saying he lost:

But to go one further than (Media Matters’ Eric) Boehlert, we’d ask not why the media fail to describe Coleman as a “sore loser”, but rather, why it is that — particularly since Tuesday’s final count of any remaining, lawfully cast, previously uncounted absentee ballots — the media fail to describe Coleman as the loser at all, much less a sore one.

Here are videos of the DFL and Republican state party press conferences, from The UpTake:

“I think we are done,” Franken attorney Marc Elias told reporters after the counting. “It’s no more complicated than this … More Minnesotans voted for Al Franken than for Norm Coleman.”

Asked about Coleman’s pledge to battle on, Elias said, “I don’t think there is much of a case on appeal, candidly.”

Coleman attorney Ben Ginsberg said he was “saddened and disappointed,” adding that there should have been 10 times more ballots counted — a reference to the Coleman camp’s submission of 4,800 uncounted absentee ballots they wanted the court to review.

“We will be appealing this to the Minnesota Supreme Court,” he said, as soon as the court issues its order based on today’s tally, which in Ginsberg’s estimation could come as early as this week.

Coleman’s appeal will make three claims, Ginsberg said. Voters received unequal treatment under the law when similar ballots received different treatment by local officials in different parts of the state. The election-contest judges issued a “new set of rules” with their Feb. 13 ruling restricting the types of ballots they would review. And those restrictions meant that many ballots cast on Nov. 4 fell into now-illegal categories.

Franken gained votes because in the narrow “universe” of ballots the three-judge panel agreed to review, Ginsberg said, “there were more Franken precincts.”

While his staffers tore into sealed ballot envelopes on the courtroom floor, Secretary of State Mark Ritchie sat in the second row of the courtroom gallery, looking like a man not fully at ease. He seemed happier afterward when he told reporters, “I think we’re getting much closer to the end today. This was an important next step.”

Asked if he saw an impending split between himself and Gov. Tim Pawlenty over whether to sign an election certificate, Ritchie said no. Pawlenty has signaled that he may not sign an election certificate for months — longer than a state Supreme Court would likely take to rule, suggesting a potential conflict with Ritchie. State law says both the governor and secretary of state must sign the certificate.

“I assume we are both going to follow the order of the Minnesota Supreme Court,” Ritchie said. The Supreme Court has said a certificate should be issued “at the end of the state court process.”

In reference to talk of an appeal to the federal judicial system, Ritchie said the U.S. Supreme Court “is not the state court.”

Neither Franken or Coleman was in court today. Coleman, who has made frequent appearances during the course of the seven-week trial, had another engagement, Ginsberg said. But each side’s coterie of attorneys kept their legal-eagle eyes peeled for anything untoward, but no objections or ballot-challenges were voiced.

Here’s what they were watching.

First came two hours of work as a pair of two-man teams carefully removed ballot envelopes from inside security envelopes, then removed ballots from inside ballot envelopes before unfolding and stacking them.

State Director of Elections Gary Poser was ringmaster, announcing each stage of the proceedings and standing at the center of the courtroom overseeing a two-ring circus.

Deputy Secretary of State Jim Gelbmann sat at one table as half of one of the two-man teams. He seemed aware of being in the spotlight, bobbing his head and lowering his shoulders as he expressively pressed down the unruly stack of ballots.

But democracy is messy. Each ballot had just emerged after being folded for five months or more inside two envelopes, and the stack wouldn’t stay flat. Minnesota’s reliance on paper ballots has often been pointed to with pride by state officials. This was the downside.

The only sound — in a packed courtroom that’s usually used by the state Supreme Court — was the rattle and ripping of paper.

When his team’s work was done, Gelbmann wiped the tabletop clean of any paper crumbs.

Several times, an absentee-ballot envelope contained only a loose ballot, not enclosed in the customary security envelope. In those cases, Gelbmann reached for a blank white envelope to serve (for less than an hour) as a substitute security envelope. Then he demonstrated how to moisten an envelope while you’re on camera: Put the flap into your mouth and move it from left to right. Do not stick out your tongue to lick.

Finally Poser took a seat at a broad wooden table to sort the final stack of ballots into piles for Franken, Coleman or “other.”

Franken attorney Elias and Coleman attorney Tony Trimble hovered over Poser from either side, each leaning with his weight on four fingertips pressed into the table top.

A string of more than a dozen uninterrupted votes for Franken within the first 20 counted didn’t bode well for Coleman, who never led in the cumulative total as Poser called out the ballots one by one.

In the end, Poser announced the day’s final tally: Coleman, 111; Franken 198; and other, 42. That’s fewer than 400 ballots because of a mix-up: Some ballots that the judges ordered to be opened had already been counted.

The judges received Poser’s report and court was adjourned. Counting 351 ballots had taken about three hours.

And that was one-ten-thousandth of the effort put forth during the statewide hand recount of 2.9 million ballots at the end of last year.

That recount, as Elias pointed out repeatedly to reporters, ended with the same result as the election contest phase appears to have reached today: Al Franken has more votes than Norm Coleman.

Related: Deputy Secretary of State Gelbmann didn’t vote for Franken: “No misgivings whatsoever”

Writes Cillizza:

One need only look to Florida for a cautionary tale in pushing a race too far/long. In 2006, Democrat Christine Jennings came up just a few hundreds votes short against Rep. Vern Buchanan (R) in the 13th district. Democrats quickly noted that there were 18,000 so-called “undervotes” (where a vote was cast for other offices but not the congressional race) and Jennings exhausted her legal options in a back and forth that spanned well into 2007.

By the time she prepared to run again in 2008, voters seemed to be over Jennings — having been exposed to her on and off for the last several years. Despite President Obama’s strong showing in Florida, Buchanan crushed Jennings by 18 points.

Some interesting details he doesn’t mention:

• Like Coleman, Jennings is a convert to her party. She’s a banker who used to be a Republican. Coleman switched from Democrat to Republican while serving as St. Paul’s mayor.
• Voters’ failure to carefully complete their ballots was blamed for Jennings’ low-triple-digit loss in 2006. Coleman suffered when various voter errors kept many ballots out of reconsideration by Minnesota’s election contest court, in a ruling issued Tuesday.
• The seat Jennings tried twice to gain was vacated by former Florida Secretary of State Katherine Harris, a key figure in the 2000 Bush v. Gore dispute. Another key figure in that titanic electoral struggle, Bush attorney Ben Ginsberg, is now Coleman’s attorney.

Among the talking-points memorandum’s main arguments is that Tuesday’s decision — along with previous rulings by the three-judge panel — disenfranchises thousands of Minnesota voters, leaving Coleman no choice but to pursue his challenge to the state Supreme Court, regardless of the additional rulings that are expected in the coming days from the same panel.

“We intend to pursue appropriate appeals if necessary to ensure that Minnesota voters are enfranchised and given full protection of their rights,” reads the memo.

But while Coleman appears ready to bunker down — an attitude undoubtedly applauded by the Republican leadership — The New Republic’s Jason Zengerle argues that the interminable electoral dispute is nearly over. He sees little chance that Coleman’s legal machinations will be successful:

Even if Coleman appeals the Minnesota Supreme Court’s ruling to the U.S. Supreme Court–which he is entitled to do–it’s doubtful the highest court in the land would hear his case. That’s because, with the exception of Bush v. Gore and a 1972 case brought by a defeated Indiana Senate candidate named Roudebush, the Supremes don’t like to muck around with electoral recounts, and Coleman’s case doesn’t appear to raise any compelling constitutional issues. So, in other words, once the Minnesota Supreme Court rules in Franken’s favor, as almost everyone expects it will, the game will be up and Mr. Franken will go to Washington.

Of course the wildcard is Gov. Tim Pawlenty, and whether he will sign an election certificate once the state courts have wrapped up the contest. As Politico reported this morning, Republicans are pressuring him to withhold his signature until all legal issues have been settled — a move that would undoubtedly endear him to the GOP base, but potentially imperil his future political prospects in Minnesota.

Norm Coleman (WDCpix)

Norm Coleman’s already grim prospects for prevailing in the ongoing U.S. Senate contest were dealt another significant blow this afternoon. The three-judge panel hearing the case ruled that only 400 rejected absentee ballots should be considered for inclusion in the final vote tally. The contested ballots will be delivered to the Minnesota Judicial Center for examination by the judges at a hearing next Tuesday.

This doesn’t mean that all 400 ballots will ultimately be added to the vote tally. But even if every single one of these ballots were to be deemed valid, the math is ugly for the Coleman camp. To close Democrat Al Franken’s current 225-vote lead, the former Republican senator would need to outpoll him by a 313-to-87 vote margin. But even that scenario isn’t realistic, considering that Independence Party candidate Dean Barkley garnered 15 percent of the vote and likely pulled some votes from the pile of 400 rejected absentee ballots.

“The math is the math,” said Marc Elias, Franken’s lead recount attorney, on a conference call with reporters this afternoon. “Obviously the math is going to be very difficult for former Sen. Coleman and his legal team at this point.”

Coleman’s legal team criticized the order for disenfranchising voters and promised to continue the legal battle. “As a result, this leaves us no choice but to appeal any final decision that includes these errors to the Minnesota State Supreme Court,” Coleman attorney Ben Ginsberg told Minnesota Public Radio.

At the start of the legal contest, Coleman’s legal team gauged the universe of wrongly rejected absentee ballots at nearly 5,000 — easily the largest potential pool of additional ballots in the election contest. But by the close of the seven-week trial that number had been whittled down to 1,360. Franken’s lawyers, by contrast, argued that just 430 rejected absentee ballots should be opened and included in the final tally.

Today’s order makes clear the daunting legal logistics faced by the three judges — Kurt Marben, Elizabeth Hayden and Denise Reilly — over the last two months. The court reviewed more than 19,000 pages of legal pleadings, 1,717 individual exhibits, and testimony from 142 witnesses. “The trial evidence comprised exhibits compiled in three-ring binders that, when stacked, equaled over 21 feet of paper copies,” the order observes.

Tuesday’s examination of the 400 ballots should clear the way for a final ruling by the three-judge panel. But barring an unlikely change of heart from the Coleman camp (and his enablers in Washington), the legal battle will continue. Next stop: the Minnesota Supreme Court.