The WSJ editorial page has consistently proven itself rich soil for baseless critiques of Minnesota’s election and recount process. But your television set still provides the best, terrarium-like conditions in which words may flourish independently of their meanings, as Media Matters demonstrates in its take on Fox News coverage of Tuesday’s Norm Coleman-Al Franken denouement.

[Via Election Law Blog]

Foley’s approach is to figuratively don a robe, as a state Supreme Court justice might, and dig into one of the nine election-problem scenarios that Coleman’s brief raises about his contest with Al Franken to represent Minnesota in the U.S. Senate.

He discovers more complexity and uncertainty in applying state law than he expected to find, at one point deciding it all hinges on the meaning of the word “satisfied.”

These state law issues, regrettably, are not straightforward. Indeed, as I’ve mulled them over since Coleman filed his brief last Thursday, at times I’ve found them mind-numbingly complex, and I’m someone who specializes in election law and has followed this vote-counting dispute from the beginning (meaning since Election Day, last November 4).

It’s Foley’s field — he’s a professor and election-law director at Ohio State’s Moritz College of Law — so you’d think he would enjoy a chance to romp in it.

But Foley doesn’t sound so happy, perhaps because, as he told the Minnesota Independent in late February, he has been rooting for a Coleman-Franken resolution that would rank among the best-settled disputed elections in American history.

He expressed hope then that a well-written, unanimous ruling from the election-contest trial court, even if appealed to the state’s high court, might leave winners and losers alike satisfied that fairness had prevailed and justice had been served.

The trial court did issue a unanimous ruling. But now Foley sounds less confident that the appeal can be handled with dispatch. Here is the conclusion to Foley’s 5,000-word (and 35-question-mark) essay:

What should one make of all this uncertainty over the state-law issues in this appeal? I’ve only considered the first of the nine scenarios identified by Coleman, and it seems more than complicated enough. Perhaps the issues will seem clearer after Franken’s brief and Coleman’s reply. But I’m not betting that complete clarity will reign in time for oral argument. And, of course, there are still the federal constitutional questions, even after all the state law issues are resolved (as well as other, non-Bell, issues of procedural bar, which might preclude reaching some of these issues on the merits).

One begins to wonder if practical considerations should overtake rigorous legal analysis in the minds of the Minnesota Supreme Court justices. According to opinion polls, the public is clamoring for this disputed election to be resolved. A remand to the trial court might spark a public outcry.

I, for one, didn’t think there needed to be an appeal in the first place. As I’ve written elsewhere, the demands of democratic legitimacy can be satisfied by a fair trial before a well-structured panel, as this three-judge court was. In the context of a major statewide election, where the need for closure is especially pressing, democratic legitimacy does not demand “de novo” review of the relevant legal questions by a second multi-member judicial panel, however fair it also might be in its consideration of the very same questions.

Still, Minnesota law undeniably permitted this appeal. Because it did, the Minnesota Supreme Court should adjudicate the appeal according to law, not politics. Therefore, as difficult and complicated as both the state and federal law issues in the appeal may be, the court’s justices must grapple with those issues as best they can using the impartial methods of judicial inquiry. The justices must follow the law wherever it leads them, even if that place is an uncomfortable one politically.

Ned Foley, Guy Charles, Rich Hasen

Three election-law experts who have been closely tracking the Norm Coleman-Al Franken contest for U.S. Senate weigh in today with written reactions to the final order (pdf) from the three-judge panel that heard Coleman’s complaint. All admired the order for its unanimity and deft handling of Coleman’s equal-protection claims.

The ruling meets two standards that Ohio State University professor Edward Foley had set for the panel: unanimity and a willingness to grapple with whether local variations in applying state election processes violated Minnesotans’ constitutional guarantee of equal protection under the law.

Foley stresses the impartiality of the ruling — as compared to, say, Bush v. Gore in 2000, on which Coleman’s claim of equal-protection violations relied:

There is no doubt … that this three-judge court would have rejected the same Equal Protection claim if raised by Franken rather than Coleman.

Loyola Law School professor Rich Hasen doesn’t use the word “impartial” but he does call the ruling “careful, unanimous,” “reasonable and conservative,” and  ”detailed and measured.”

On equal protection, Hasen writes that the three-judge panel “has it both ways” — calling the issue outside the court’s scope but also rejecting it with “impressive and sensitive handling”:

As I predicted, they rejected a reading of the case that would require the counting of further illegal votes to deal with any illegal votes that had already been cast, and they rejected an argument that any lack of perfection in the casting and counting of votes constitutes a violation of equal protection.

Coleman’s equal protection argument is “not trivial,” writes Guy Charles, a University of Minnesota law professor temporarily teaching at Duke University:

But as judges and legal academics like to say, that argument proves too much … Unfortunately for Coleman, his prospects always depended upon a miracle. He wanted before and wants now more ballots to be counted. But the more ballots that are counted — by election officials, the Canvassing Board and the trial court — the better Al Franken does.

“It’s over,” Charles advises Coleman on his post-election legal battle. “It’s Kumbayah time.”

But other factors could change that picture, they say. The contest’s outcome could be decided in the St. Paul courtroom where it’s now being heard, or within faraway walls designed by a man from St. Paul: Cass Gilbert’s U.S. Supreme Court building in Washington, D.C.

“The most obvious, clean resolution is resolution by the [current] three-judge court, with no appeal,” says Charles, a University of Minnesota Law School professor who is teaching at Duke University Law School this year. The next, least-complicated scenario: A decision from the current court is appealed to the state Supreme Court, but with no further appeal or recourse to any other venue.

“I don’t think those two are likely,” Charles says. He sees the losing side pressing its case to the U.S. Supreme Court. But it may not get there. “I would be surprised if the court accepted the petition,” he says.

That would leave the state high court’s decision standing. “I think the decision of the Minnesota Supreme Court will be the final decision,” Charles says.

That still might not mean the losing side hangs up its swords and shields, he adds. “If I were in their shoes, I would instead file a federal lawsuit,” Charles says — one built on the kind of equal protection claims Coleman has already been making, and perhaps a due process argument as well.

Both camps have already “flirted with” issues that could be raised in federal district court, Charles says. “Each has pulled out big legal guns, constitutional guns.”

The legal theories that either side might bring, if it lost, are similar, but each has its own set of facts. Appeals arising from such a suit could also bring the case before the U.S. Supreme Court justices.

Neither Charles nor Foley, a professor at Ohio State University’s Moritz College of Law, puts much stock in the idea that the U.S. Senate might aggressively push to fill Minnesota’s seat before the court action is completed to allow a certificate of election.

Foley says the focus should be on the unanimity — or lack thereof — of the three-judge panel presiding over the current election contest. If the unanimous orders it has issued on motions so far presage a unanimous decision at trial’s end, Foley says, the state’s high court would likely be loath to reverse them on appeal. If however, the panel splits 2-1, the losing side will have more of an opening with the high court.

As for the U.S. Supreme Court, Foley is dubious about the eagerness of justices there to take the case; Charles is emphatic in his belief that they would not. One reason Foley gives: Minnesota’s Senate seat simply isn’t the national emergency the high court considered Bush v. Gore to be in 2000.

Foley — whose historical research into how America has settled close elections leads him to exalt Minnesota’s recount of the 1962 governor’s race to the highest – says the best scenario is one in which the loser goes home satisfied he lost fair and square. He thinks there’s still hope for that to happen with this election as well, wherever it’s finally resolved.

“The sad truth is, most [close elections] have been handled without that sense of desirable closure,” Foley says.

“But at least once in history, both sides agreed it was done properly. I’m still hopeful  Minnesotans will come to feel that way about this election.”