Photo: The UpTake

Joe Friedberg, the star attorney who gave the closing arguments for Norm Coleman last week in Minnesota’s Senate trial, predicts his client won’t prevail in the election contest without appealing to the state Supreme Court. When the current three-judge panel rules, Friedberg told a local radio audience, ”Franken will still be ahead and probably by a little bit more (than his 225-vote margin in the recount).”

Friedberg was interviewed Wednesday by Ron Rosenbaum on “The Dan Barreiro Show” on KFAN-AM (mp3, starts at 22:22). A partial excerpt:

ROSENBAUM: Joe, are you done?

FRIEDBERG: Yes (laughing), I’m done.

ROSENBAUM: Let me ask you in a different way. Is Norm done?

FRIEDBERG: Well, I think that we’ve been trying this case with the appeal record in mind, and that’s where we’re going, and it’s going to be a very quick appeal, and then I’ll know whether or not it worked.

ROSENBAUM: Well, when you say quick appeal, are you confident that you are going to lose the case in front of the three-judge panel? By losing the case, I mean Norm ends up with less votes.

FRIEDBERG: I think that’s probably correct that Franken will still be ahead and probably by a little bit more. But our whole argument was a constitutional argument, and it’s an argument suitable for the Minnesota Supreme Court, not for the trial court. So we’ll see whether we were right or not.

The dialogue then veered into the background of the equal-protection argument Coleman’s side has asserted, from its past application in elections that featured racial and ethnic discrimination to the Bush v. Gore case in 2000.

Friedberg said the U.S. Supreme Court didn’t expect that case’s circumstances to recur, “where different standards were applying in different electoral precincts … The court didn’t think they’d ever look at another one. Well, hi. We’re here.”

Later:

ROSENBAUM: In point of fact, our system isn’t capable of handling it, right?

FRIEDBERG: No, because frankly, no matter what happens, nobody will ever know who got the — quote — most votes. Nobody will ever know that. …

ROSENBAUM: So we could still be awhile before this thing gets decided?

FRIEDBERG: Yeah, I think that’s clearly true.

Hat tip: Hotline On Call (via MnPublius).

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.”

McCain pleaded ignorance about the controversy. “Well to tell you the truth I haven’t seen her remarks and I don’t have any comment until I would have a chance to see it,” the Republican presidential nominee said. “We’ve been out on the campaign trail, obviously. … I can’t comment because I haven’t seen her remarks or even heard anything about them until you brought this up.”

You can listen to the entire interview here.