Photo: Wikipedia

Norm Coleman should be crying crocodile tears over David Souter’s imminent departure from the U.S. Supreme Court. The former senator may yet bring an election case to the nation’s high court that relies on the 2000 Bush v. Gore recount ruling. Souter abhorred the Bush v. Gore decision more viscerally than any successor ever could.

Here’s how much Souter despised the Bush v. Gore decision, as recounted in New Yorker reporter Jeffrey Toobin’s 2007 book, “The Nine“:

David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal.

Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the court was never the same. There were times when David Souter thought of Bush v. Gore and wept.

Souter was more restrained in his written dissent in Bush v. Gore. More remarkable was that the majority opinion that gave George W. Bush the presidency also famously proscribed using the decision as precedent:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Yet in the brief he submitted to the Minnesota Supreme Court on April 30, Coleman cited Bush v. Gore five times.

On pages 1–2:

Whether the trial court violated the constitutional protecxtions of equal protection and due process when it imposed a strict compliance standard for rejected absentee ballots rather than a substantial compliance standard like that actually applied by election officials (and in accord with this Court’s longstanding policy favoring enfranchisement)? … Apposite Authorities: … Bush v. Gore, 531 U.S. 98 (2000) …

On page 23:

The applicability of the guarantees of equal protection and due process in the Fourteenth Amendment to the Constitution also made such evidence [of absentee ballots counted on Election Day not meeting the election contest court's standards] relevant. Those guarantees mandate that all similarly situated absentee ballots be reviewed under a uniform standard uniformly applied. See, e.g., Bush v. Gore, 531 U.S. 98 (2000) …

On page 41:

But the Constitution protects “more than the initial allocation of the franchise.” Bush v. Gore, 531 U.S. at 104. It also protects the right of all qualified voters to have their votes counted equally. Id. …

If the state fails to apply “specific standards during a statewide recount that will ensure “equal application” to all votes, the lack of uniform standards is a constittional violation. Bush, 531 U.S. at 106.

On pages 42–43:

The trial court’s attempt to distinguish Bush v. Gore, which makes clear that different areas of the state applying different interpretations of an applicable standard is unacceptable under the Constitution, is not persuasive. There is no logical distinction between the unequal treatment of equivalent chads caused by the Florida Supreme Court’s imprecision (different counties interpreting the court’s holding differently) and the unequal local treatment of absentee ballots caused by imprecision in officials’ understanding and intentional application of the statutory standard set forth in Minn. Stat. 203B.12, subd.2. Just because Minnesota’s standard was set by statute rather than court decision does not excuse the constitutional requirement that the standard be applied uniformly. In both cases a standard has been inconsistently applied as the result of official imprecision. Indeed, because it leaves standing — and therefore, ratifies — local decisions made in accordance with their own interpretative gloss on the statute, without insisting on strict compliance for all absentee ballots, the trial court’s decision itself confirms the same constitutional violation at issue in Bush v. Gore. Deliberate unequal treatment of similarly situated voters simply is unacceptable under federal equal protection law.

Once the first President Bush put him on the bench in 1990, Souter moved in a liberal direction, running opposite to Coleman’s Dem-to-Republican transformation. But it’s not Souter’s place among the court’s liberal minority that should make Coleman smile to see him go. (Obama can find a reliably liberal justice to replace him.) It’s Souter’s reviling of Bush v. Gore that Coleman should be glad to see vanish.

By expert estimation, Franken is himself six weeks away from being seated in the Senate. It’s a full month before the Minnesota Supreme Court hears oral arguments in the case of Norm Coleman vs. Al Franken. A ruling in Coleman’s appeal of their 2008 U.S. Senate election may take weeks more. After a statewide hand recount and a seven-week election-contest trial, Franken holds a 312-vote margin of victory over Coleman.

Here’s a clip including Franken’s free transition advice for Bush on Bill Maher’s “Politically Incorrect” TV show. The discussion starts at the 7:00 mark, with the exchange between Franken and conservative Los Angeles radio host Al Rantel (paritally transcribed below) starting at the 8:00 mark.

RANTEL: A third of the time’s gone while this guy (Franken) and his friends try to steal the election from Bush.

FRANKEN: I will not let that stand. But go ahead, and then we’ll …

RANTEL: For Bush it’s harder than for Gore…

FRANKEN: His father has picked the cabinet.

RANTEL: That’s not true. For Gore, he’s got a Democratic bureaucracy already in place by Clinton. …

FRANKEN: OK, the point is you really can’t start a transition until you’ve been elected president.

RANTEL: Well, I think he has been elected president.

FRANKEN: I know you think that, but he hasn’t. And you guys would like everyone to think it.

RANTEL: What would you have said, if Gore would have been certified by Florida on Sunday night –

FRANKEN: By his campaign manager? By his campaign vice president?

RANTEL: No, by the counties that reported the numbers. What would you have said?

FRANKEN: I would have said: Recount the votes.

RANTEL: Oh, you would not have. If Gore had been elected you would say recount the votes?

FRANKEN: I would have taken up Bush on the statewide recount.

MAHER (interrupting): What about the lie that I was just talking about? The lie that you have to rush to appoint a cabinet when of course they don’t.

RANTEL: Well, everybody at this point has got to go through FBI background checks. If they’re cabinet members, they’ve got to be approved by the Congress, by the Senate –

MAHER: And that takes three months?

RANTEL: Well, it’s already almost December.

MAHER: Just admit it’s a lie. I’ll give you the office. It’s just a lie.

FRANKEN (to Maher, pointing to Rantel): He and I hate each other. But you’re wrong.

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.

In backing Republican Coleman’s constitutional arguments, the WSJ recycles its earlier warning about Minnesota being another Florida (a la 2000’s Bush v. Gore recount fiasco) and tosses in more geographic name-calling for good measure:

And there have been plenty of irregularities. By the end of the recount, the state was awash with evidence of duplicate ballot counting, newly discovered ballots, missing ballots, illegal voting, and wildly diverse standards as to which votes were counted. Any one of these issues was enough to throw the outcome into doubt. Combined, they created a taint more worthy of New Jersey than Minnesota.

The Bemidji Pioneer likewise leans Coleman’s way (the paper endorsed him in 1998, 2002 and 2008) but is ready with strong medicine for the former senator about accepting Democrat Al Franken’s election:

Sen. Coleman’s appeals were necessary and a legal part of the process. But at some point, incessant appeals serve no more than to obstruct the process than to guarantee justice. … The public perception at this point appears not to be one of letting Sen. Coleman fully seek redress of his legal grievances, but rather one of obstructing the Democrat-controlled Senate to prevent it from reaching that magic number of 60 votes. … To continue to obstruct doesn’t bode well for Minnesota, nor for Sen. Coleman’s career, should he continue in politics. It’s time to come home, Norm.

Interestingly, the Pioneer sees the process breaking against both men:

At this point, we seriously doubt the credibility of either Sen. Coleman or Mr. Franken to have a productive Senate tenure for the remaining 5½ years — which could become less should Sen. Coleman continue to the U.S. Supreme Court, which could decide not to hear the case until it convenes in October after a summer break.

The word “credibility” is suddenly popping up in the Coleman-Franken fracas just as the tips of tulips are breaking through the chilly Minnesota soil. Coleman himself used it while holding court with the Star Tribune editorial board:

No matter who wins, one side is going to pound the other side and question the credibility of the winner. If I win, I’ll be shot at by those who say, “Is he legitimate?”

Coleman’s comment, posted and published over the weekend, is in tune with this statement from the same session, released by the Strib last week: “We will never know who won.”

According to the tally kept at MinnPost’s Braublog, newspaper editorials now stand at — you guessed it — a tie, for and against Coleman’s imminent appeal to the state Supreme Court. That’s not counting such out-of-state interlopers as the WSJ, the New York Times, the Las Vegas Sun and the Jamestown (S.D.) Sun.

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.”