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.”

PNC (Peeps National Convention) Riots We are social workers at Regions Hospital … We were able to witness the riots outside of the RNC this year from our curbside seat (all that was missing was some beer and a pizza for our enjoyment…we enjoyed that later at Savoys). This is a portrayal of the anarchists and other unlucky folks who were arrested on the John Ireland Bridge. Notice the demonstrator urinating over the bridge!

(Read about the original, human enactment of the RNC protester-roundup on the John Ireland Bridge here.) Back by peepular demand and also from the PiPress competition, here is the Norm Coleman-Al Franken election contest trial scene by Nancy, Nikki, Robert and Roberta Muehlhausen that we featured earlier this week — this time with speech balloons: Next are a pair of dioramas from the Peeps in Law gallery at the ABA Journal Web site. First, a vision in peeps (by Emily Good and Rachel Hughey) showing where the dispute over who’s the Minnesota’s second U.S. Senate seat may be headed: The United States Supeep Court. And here is a depiction (by Amrita Singh, Stephanie Hood and Rachelle Bergeron) of the constitutional principle on which Coleman has said he may take his case to highest court in the land, in a scene that’s sure be repeepted many times over in Iowa and Vermont: Thanks to ABAJournal.com Assistant Managing Editor Molly McDonough for bringing to MnIndy’s attention the American Bar Association’s devotion to peeps, of which we were hitherto unaware.

The Hill asked eight Republican senators what their former colleague from Minnesota should do, now that the election-contest court ruling indicates he’ll fail to overtake Democrat Al Franken’s 225-vote recount lead. Here’s a representative sample, from Sen. Bob Corker (R-Tenn.):

Norm is a very sensitive, thoughtful person and whatever Norm is doing I’m sure he believes is exactly the right thing to do and I support that.

The eight take a remarkably similar line on Coleman’s options: An octopus could tally their reasons on one leg. It’s almost as if there had been a meeting to settle on talking points. Sen. Orrin Hatch (R-Utah), a veteran on the senate’s Judiciary Committee, was the only one to elaborate much on the theme, with a partisan jab on Minnesota’s vote-counting that even Coleman has lately shied from:

There are very important issues involved — constitutional issues — and I have no qualms about saying that if he can, he ought to push it all the way. We’re so sick and tired of having one set of rules for Democrats they don’t abide by, and then another set of rules for Republicans. The Democrats didn’t count the ballots the way they should and they didn’t put the protections in that they should. It was the Republicans who were better at counting ballots and doing what was right and following the law. … It’s always good to have two senators, but not when one may not be entitled to the position.

Talk like that has succeeded so far in sending out a cloud of ink, some observers say, obscuring the press’ vision and forestalling media from calling out Coleman as a “sore loser.”

But assuming Coleman comes up empty in state courts, one expert says it’s close to pointless for him to pursue a different result in federal courts. Loyola Law School professor Richard L. Hasen writes that the federal judiciary — whether at the U.S. Supreme Court or in district court — won’t likely buy what Coleman’s got to sell.

At the Supreme Court, “the equal protection argument is very unlikely to succeed,” in Hasen’s judgment. And he says “it is hard to see viable federal issues” for such an argument should Coleman file a separate federal court case.

Due process, Hasen writes, “is one other possible claim, and it too is a long shot.”

Foley, an Ohio State law professor who studies disputed American elections and has tracked Minnesota’s Senate election saga closely, told the Minnesota Independent weeks ago that the state’s Supreme Court would likely decide the case — and that the three judges’ continued unanimity was critical. Coleman’s attorneys now make no bones about their intention to appeal to the Minnesota Supreme Court for help in reversing Franken’s 225-vote recount victory. 

Tuesday’s ruling, which Foley calls “unsurprising,” means the only legal issue still in play is whether Minnesota’s method of counting votes is so poor it violates the U.S. Constitution’s guarantee of equal protection under the law. Here’s Foley’s bottom line:

Coleman’s Equal Protection claim is hardly a slam-dunk winner. But various possible refined and narrower versions of this argument, depending on the strength of the relevant evidence, are not obvious slam-dunk losers, either, under Bush v. Gore. For this reason, it remains important how the three-judge court explains its final ruling on the Equal Protection claim, even if all observers expect the court to rule against Coleman.

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).