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.

Norm Coleman and Al Franken (Photos: WDCpix.com)

Every ballot tells a story. Or maybe it doesn’t.

That’s the debate that attorneys for Al Franken and Norm Coleman grappled with in oral arguments this morning before the Minnesota Supreme Court in the U.S. Senate election contest. Following a seven-week trial — which featured 142 witnesses and roughly 20,000 pages of legal documents — a three-judge panel determined that Franken won the election by 312 votes.

Joe Friedberg, Coleman’s lead attorney, argued today that there were widespread disparities across the state among which absentee ballots were rejected. He wants the case remanded to the three-judge panel so that roughly 4,400 additional absentee ballots can be considered for inclusion in the vote tally. In particular, Friedberg argued that Franken-friendly areas of the state applied a more lenient standard in accepting ballots.

“If people from around the state had all cast their ballots in Minneapolis or Ramsey County, there’d be half as many rejected ballots,” Friedberg said. “That’s what the numbers show.”

But Marc Elias, Franken’s lead recount attorney, countered that some variance in the election system is necessary to allow for efficient and effective elections. He further stated that Coleman had failed to present evidence of specific ballots that were improperly rejected.

“Don’t tell us there are some 4,400,” Elias said. “Tell us which are the ballots.”

Most legal analysts believe that Coleman faces an extremely difficult task in convincing the Supreme Court to overturn the ruling of the panel. Perhaps indicative of that, Friedberg faced persistent interruptions and questioning throughout his arguments.

“I am very bothered by your offer of proof,” Justice Paul Anderson stated at one point, echoing the Franken camp’s assertion. “They’re basically just lists, lists of names.”

Friedberg countered that the trial court failed to allow them to introduce the specific evidence necessary to make their case. “I couldn’t get it in, and I tried to the point where I strained the court’s patience.” he said. “I didn’t want to go any further than that.”

Justice Alan Page questioned whether Coleman had reversed his legal arguments, citing a previous court document in which he’d argued for a strict enforcement of the state’s standards for what absentee ballots should be accepted. “Is that consistent with the argument you make today?” Page asked.

“No sir, it’s not consistent,” Friedberg acknowledged. “When we realized that whether your vote counted depended on where you lived, we changed.”

Elias received slightly more delicate treatment from the justices. He argued that the universe of contested absentee ballots is only about 300 — or slightly less than the lead currently held by Franken.

“It would still be impossible for the appellants to make up the difference,” Elias said. “Al Franken received more lawfully cast ballots on election day than Senator Coleman.”

Justices Christopher Dietzen and Lorie Skjerven Gildea were most vigorous in pressing Elias on the issue of whether illegal ballots had been accepted. In particular, Dietzen queried Franken’s attorney on ballot envelopes that lacked a witness signature. Elias conceded that it’s likely some ballots were improperly counted, but that such judgments can only be made after considering a full history of the ballot.

“We don’t know the story behind that ballot,” he said, noting that there could have been a replacement ballot. “There are reasons why the election officials accepted and rejected ballots.”

Friedberg, however, questioned the narrative value of each individual ballot, arguing that the disparities in the system were systemic. “Every ballot doesn’t tell a story,” he said.

Coleman has vowed to continue pursuing the legal contest and has been egged on by the Republican leadership in Washington. If Franken takes office he would become the 60th Democratic senator, giving President Obama a filibuster-proof majority.

Franken has asked the Supreme Court to order Gov. Tim Pawlenty to issue an election certificate, thus paving the way for him to be seated in Washington. But the Republican Governor has suggested that he might not sign a certificate even if the state’s top court rules in Franken’s favor.

Only five justices are hearing the case. Two justices, Eric Magnuson and G. Barry Anderson, recused themselves owing to their participation in the State Canvassing Board that initially certified Franken the winner back in January. The justices gave no indication when they would rule on the matter.

“We shall take this matter under advisement and an opinion will be forthcoming,” Page said at the close of the hearing.

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.

Franken wants the state’s highest court to affirm the ruling by a three-judge panel that he won the U.S. Senate contest by 312 votes and order that he be issued an election certificate immediately.

“For over four months, the citizens of Minnesota have been represented by only one United States Senator, and the effects of this delay are increasingly significant,” the brief reads.

The issuance of the certificate is key because it would almost certainly allow Franken to take his post in Washington, D.C., while any appeals to the federal courts play out. Republican Gov. Tim Pawlenty has equivocated on whether he would sign an election certificate once the state-court process is completed. He told Minnesota Public Radio last month that he would scrutinize the Supreme Court’s ruling and the strength of Coleman’s case before making a decision.

Coleman’s appeal calls on the state’s highest court to remand the case back to the three-judge panel to deal with purported errors in its initial ruling. The former senator’s brief focuses primarily on varying standards utilized by local election officials in determining which absentee ballots would be counted. It argues that the disparate treatment of ballots is a violation of the Constitution’s equal protection clause. Coleman wants at least 1,359 rejected absentee ballots added to the tally. His appeal also argues that 132 ballots that were lost should not be counted and that some ballots were wrongly counted twice.

Franken’s brief concedes that some mistakes were made by local election officials in determining whether to reject an absentee ballot. “There is, however, no evidence that such errors were deliberate or intentional or that they determined the outcome of the 2008 senatorial election,” the brief reads.

The brief also emphasizes the thoroughness of the legal proceedings before the three-judge panel, noting that it heard from 142 witnesses, examined nearly 2,000 exhibits and considered roughly 20,000 pages of legal documents.

“It was their burden to show that Norm Coleman won a majority of the votes,” said Marc Elias, Franken’s lead recount attorney, on a conference call with reporters this afternoon. “He failed to meet that burden and I would say he failed to meet it by a wide margin.”

Elias expressed confidence that Franken will be seated once the state Supreme Court rules. He dismissed recent comments by Republican National Committee chairman Michael Steele expressing enthusiastic support for Coleman to continue the legal fight in federal courts. “I don’t follow closely what he has to say about the law in Minnesota,” Elias said of Steele.

Oral arguments before the state Supreme Court are slated for June 1. Only five judges will hear the case. Justices Eric Magnuson and G. Barry Anderson have recused themselves because they served on the State Canvassing Board that certified Franken the victor.

(WDCpix)

Norm Coleman filed his appeal of the U.S. Senate election contest with the Minnesota Supreme Court today, arguing that “widespread disparities” in which absentee ballots were accepted distorted the final vote tally.

“The deliberate and disparate treatment of large numbers of similarly situated voters — who had their votes counted only if they lived in certain jurisdictions — is unacceptable in any election,” the brief notes. “It is especially so in one so close.”

Earlier this month, following a seven-week trial, a three-judge panel determined that Al Franken won the election by 312 votes. Coleman immediately announced that he would appeal the ruling.

The crux of Coleman’s case is whether different standards were applied across the state in deciding which absentee ballots were counted in violation of the Constitution’s equal protection clause.

“Some counties, for example, assiduously researched whether a voter or his witness was registered; others never inquired,” the 62-page brief notes. “Some officials accepted ballots when they could not locate an application; others refused to do so. The result is that whether an absentee ballot was accepted depended on where the voter lived.”

While many legal observers praised the ruling of the three-judge panel that heard the election contest as thorough and well reasoned, Coleman argues that the trio erred in failing to consider evidence of disparate treatment of ballots.

“Had the court not excluded such evidence Coleman would have proven the disparities changed the outcome of the election,” the brief reads.

Coleman contends other errors were made by the panel as well. The appeal argues that the judges failed to order precinct inspections to determine if double-counting of ballots occurred and wrongly included 132 ballots from a Minneapolis precinct that were lost.

The brief, signed by attorney James Langdon, concludes that the case should be remanded back to the trial court to remedy these errors. Specifically, Coleman wants at least 1,359 absentee ballots added to the final tally.

Franken’s reply brief is due May 11, and oral arguments are slated for June 1 before the five justices. Two of the Supreme Court’s justices — Eric Magnuson and G. Barry Anderson — have recused themselves from the current case because they served on the State Canvassing Board that oversaw the recount.

The order (pdf) is a relatively minor move that allows out-of-state lawyers Marc Elias and Kevin Hamilton to represent Franken before the state’s high court. But as TPM notes, the signature page indicates the same lineup as in the court’s past actions in the matter.

The signatures from the remaining five justices on today’s order indicate that even those who donated to related political funds —  such as Associate Justice Christopher Dietzen, who gave money to Coleman’s 2008 campaign in 2006 — will continue to participate in deliberations on the Coleman-Franken dispute.

None of the justices’ donations in question were made after they joined the bench.

It’s not yet clear whether the justices might call in reserves to help with the heavy lifting, should they agree to hear Coleman’s appeal. Past practice dictates that the court sometimes replaces missing members with fill-ins from the ranks of retirees from the bench.

Because of this conflict, Magnuson (pictured) and Anderson have removed themselves from previous hearings before the state’s top court. John Kostouros, Communications Director for the state’s Court Information Office, confirms that they are expected to withdraw from any hearings going forward.

“They’ve indicated from the beginning that they would recuse themselves from any further activity in this one because they served on the panel,” Kostouros says. “They’ve made it clear to me that they intend to stay out of this.”

The absence of Magnuson and Anderson from any appeal deliberations is potentially another blow to Norm Coleman’s (already slim) prospects at prevailing in the state courts. Both justices were appointed by Republican governors.

Following the addition of 351 ballots to the vote tally yesterday, Franken’s lead has grown to 312 votes. The three-judge panel hearing the Senate contest is expected to issue a ruling shortly. Coleman has vowed to appeal the matter to the state Supreme Court.

Attorneys for Norm Coleman and the State of Minnesota countered that state law explicitly provides for an election contest such as is currently underway and that there’s no justification for certifying a winner until that process is completed.

“Minnesota has made a determination that when it comes to the question of who has won it’s important to take the time to get it right,” said James Langdon, representing the Coleman campaign.

“There are legitimate, serious issues to be determined by the contest court and it is in the business of doing so right now.”

The justices seemed skeptical of the Franken campaign’s arguments. They questioned both sides vigorously,  however, often interrupting their arguments.

Justice Christopher Dietzen noted at one point that both campaigns have flip-flopped on which votes should be included in the final tally. “I don’t think the hands are clean or pure on either side of that,” he said.

Elias brought up the ongoing debate over the federal stimulus package to make a case that Minnesota needs to have two senators representing its interests in Washington.

“The perfect cannot be the enemy of the good,” he said. “The nation’s business is going on as we speak. … For want of a vote a stimulus package may be lost.”

The Supreme Court was reduced to just four members for the hearing. Justices Eric Magnuson and G. Barry Anderson have recused themselves from cases involving the U.S. Senate race because they served on the state Canvassing Board, which oversaw the manual recount and certified Franken the winner by 225 votes. Justice Helen Meyer was not present for oral arguments but will participate in the case. There was no indication when the court might rule on the matter.

Related: Unless Franken gets temporary certificate, Senate seat could stay empty 5 months

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.”