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.

OpenSecrets.org found that Sotomayor hasn’t made a political donation since joining the federal bench in 1992, while others on Obama’s shortlist — especially those who aren’t judges — made lots of them.

Elena Kagan, for example, gave Obama’s 2008 presidential campaign the maximum allowed: $4,600. She was dean of Harvard Law School before Obama appointed her U.S. Solicitor General this year.

Diane Wood made $1,250 in political donations during the 1992 election cycle, the lion’s share going to Bill Clinton, who appointed her to the federal Court of Appeals in 1995. Wood’s current husband has given $5,000 in the past six years, almost half of that to Obama.

Records of political giving haunt several of Minnesota’s sitting high-court justices. Three of the five Minnesota Supreme Court justices who will hear oral arguments in Coleman v. Franken on Monday have made donations to current or past candidates for the seat that’s in dispute. All gave before they were named to the high court.

Two are from past election cycles: Justice Helen Meyer gave to the late Democratic U.S. Sen. Paul Wellstone’s 2002 re-election campaign, and Justice Lori Gildea donated to Coleman’s unsuccessful 1998 run for governor as a Republican.

Justice Christopher Dietzen gave $250 to the “Coleman for Senator 08” campaign committee in 2004,  11 months before Gov. Tim Pawlenty appointed him to the state Supreme Court.

None of the three has recused himself or herself from judging Coleman’s appeal of the election contest court ruling that showed Franken won the U.S. Senate race by 312 votes.

Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson have not participated in any of the high court’s proceedings or deliberations related to the Senate election. They served on the State Canvassing Board late last year, which found that Franken had won the statewide hand recount of 2.9 million ballots cast.

Two Supreme Court justices who served on the State Canvassing Board will recuse themselves, the Minnesota Independent reported last week, but a court spokesman tells MnIndy this morning that word of any further recusals won’t come until the high court accepts an appeal and lays out ground rules in an initial order.

News of Dietzen’s donations came from the blog Down With Tyranny on Saturday and was picked up Monday morning by the blogger Senate Guru, who last week posted an analysis of the Minnesota Supreme Court justices’ political background.

The two judges who served on the State Canvassing Board during the Franken-Coleman recount in late 2008 and early 2009 are Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson. Because of the roles they played in the recount, neither participated in previous court decisions, and they won’t take part in any future cases related to the recount.

But Dietzen has not recused himself on earlier Coleman-Franken decisions. Court spokesman Kyle Christophersen said that unless individual justices take the unusual step of making their plans for recusal public in advance of deliberations, the world learns about recusals only after the court releases its first order in a case — and even then, it’s ordinarily without explanation.

The three-judge panel that heard Coleman’s contest of Franken’s recount win in the 2008 U.S. Senate race is expected to issue its final order at any time. Coleman has promised to appeal that decision, assuming it leaves Franken’s margin of victory intact, to the state Supreme Court.

A recusal by Dietzen would leave only four of the seven-person high court to decide whether Coleman’s complaints about the election, recount and election contest trial have legal merit.

Dietzen joined the state Court of Appeals in December 2004 — the same year but 11 months after his last political donation to Coleman — and was named to the state’s high court in November 2007. Gov. Tim Pawlenty, whose campaign Dietzen served as a lawyer in 2002, appointed Dietzen to both posts.

Here is the Federal Election Commission’s record of Dietzen’s latest two political contributions, both to Coleman. (For a pdf of the full FEC records showing nearly $4,000 in Dietzen donations between 2001and 2004, click here.)

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.