Norm Coleman. Photo: 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.

James Langdon. Photo: UpTake

“Set aside the election.”

Those four words appear as the “most appropriate remedy,” in a letter that Norm Coleman’s lawyer, James Langdon, sent to the judges Monday in the former Minnesota senator’s election contest trial. The letter cites eight cases from other states in which courts found “the number of illegal votes exceeds the margin between the candidates.”

In the brief letter (pdf), Coleman lawyer James Langdon first raises a remedy called “proportionate reduction,” a method he said has been used in Alaska, Arizona, California, Illinois and South Dakota that knocks out votes on a precinct-by-precinct basis in elections where ballots were cast illegally.

Then he proposes an idea that’s so far been broached by others only outside of court, using informal terms like “re-do,” “do-over” and “run it again.” The letter states:

Some courts have held that when the number of illegal votes exceeds the margin between the candidates — and it cannot be determined for which candidate those illegal votes were cast — the most appropriate remedy is to set aside the election. In that regard, the Court may wish to review the following cases addressing situations in which the number of illegal votes is large and the margin of victory small: [case citations follow].

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