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.”