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.

As on Friday, five sitting justices grilled campaign attorneys, signaling dissatisfaction with both sides’ positions on a Coleman recount lawsuit. (Two of the seven-member court absented themselves because they’re serving on the State Canvassing Board that the Coleman campaign has been named as a defendant in the duplicates case.)

Roger Magnuson, Coleman’s attorney, asserted there’s evidence of double counting in 25 counties and wants the State Canvassing Board to check it out before certifying the vote. The double counting allegedly happened when voters’ original ballots got separated from the duplicate ballots onto which local election officials transferred the votes when vote-counting machines couldn’t read the original.

“This disenfranchises all the other voters,” Magnuson said, adding that the narrow margin of the race, which now unofficially has Franken at a 47-vote advantage, raises the specter “that the loser is declared the winner.”

Associate Justice Paul Anderson prodded Magnuson on questions of evidence and process. “Isn’t this an evidentiary issue best left for an election contest?” Anderson asked. (Election contests are lawsuits filed after the State Canvassing Board certifies the election results.) He also asked how the electoral emergency that the Coleman side asserts in the lawsuit measures up against the judicial yardstick scenario of a house burning down.

“[There is] enough suspicion, enough evidence,” Magnuson said. “[We're asking for] an extraordinary intervention simply to do the due diligence to settle this matter.”

Magnuson cited comments of concern about the likelihood of double-counted votes that Associate Supreme Court Justice G. Barry Anderson made last week as a member of the State Canvassing Board. (Chief Justice Eric Magnuson was also not present for today’s hearing because, like G. Barry Anderson, he’s on the State Canvassing Board.) Associate Justice Alan Page bristled at that: “Our fellow justices aren’t here and they don’t have to wrestle with this issue like we do.”

One major point of contention was how much work the requested court action would compel on the part of local election officials. Attorney Magnuson said it would be limited to 25 precincts statewide; “They’re cherry picking,” Franken attorney Bill Pentelovich countered. The Coleman camp is trying to rewrite agreed-upon rules for counting duplicate ballots, he said, and to ensure fairness “all 4,001 precincts would have to be recounted.”

Attorney Dan Rogan, speaking on behalf of defendant Hennepin County, said Coleman’s suit was wrong to single out counties at all because the remedy of recounting bypasses county canvassing boards.

Assistant Minneapolis City Attorney Peter Ginder said statements by City Elections Director Cindy Reichert about cases of double-counted votes — which Coleman’s camp frequently cites to buttress its claims — merely represented one of several possible explanations for tabulation discrepancies.

Attorney General Lori Swanson asserted the State Canvassing Board’s duty to sidestep the duplicate ballot question since — despite four of its members being judges — it has no authority to conduct the necessary fact-finding and make judgements based on such evidence.

That wasn’t sufficient, Attorney Magnuson said: “This court ought not to remain passive because this particular issue might determine the election in terms of who’s declared [victor].”

With that the court adjourned, making no immediate ruling from the bench — though a decision could come at any time.

Minnesota media mostly keep those two straight, but even locals find the profusion of Scandinavian surnames in the various recount venues vexing. Typical is KARE-11′s recent confusion of Roger Magnuson, an attorney who makes Coleman’s recount arguments before the state Supreme Court, with Eric Magnuson, the Supreme Court’s chief justice who doesn’t hear such cases due to his current service on the State Canvassing Board. (To make matters worse, there’s also a U.S. District Court Judge Paul Magnuson in Minnesota.)

And don’t even get started with another name that’s so common and so golden in Minnesota politics that it’s inspired a term –”The Anderson Effect” — to describe the often ill-informed preference voters give to candidates who bear it.

You can look in any political direction in Minnesota and find an Anderson. The last major recount in Minnesota 46 years ago involved Gov. Elmer L. Andersen (slight spelling variant there). The last non-Jewish major-party candidate (as it happens) for the U.S. Senate seat that’s now under recount was Joan Anderson Growe in 1984 (the others, all Jews, being senators Rudy Boschwitz, the late Paul Wellstone and Coleman). And this year an unknown Independence Party candidate named Bob Anderson drew a whopping 10 percent of the vote, possibly helping an embattled incumbent U.S. Rep. Michele Bachmann win re-election in Minnesota’s 6th Congressional District.

And sure enough, there’s a pair of Andersons on the Minnesota Supreme Court: Paul and G. Barry. The latter has recused himself from the courtroom for recount matters while he serves in the recount effort as an appointed member of the State Canvassing Board, just like his colleague Eric Magnuson — who was himself appointed this year to be chief justice after the retirement of a man who spent more than a quarter century on the state’s highest bench … a man by the name of (you guessed it) Anderson.

On a day like today when both the state Supreme Court and the State Canvassing Board are in action, and Scandinavian names are flying through rarefied air in the halls of power like so many potato pancakes, Minnesota needs to consult its most time-honored pair of experts in the Abbott and Costello vein: Sven and Ole.

SVEN: Oy, Ole, this recount is taking longer than lutefisk. Who’s deciding this here thing then?

OLE: Minnesota State Canvassing Board, they say.

SVEN: Who’s on that?

OLE: Well, there’s Magnuson and Anderson…

SVEN: OK, Magnuson and Anderson are canvassers.

OLE: No, Magnuson and Anderson are justices on the Minnesota Supreme Court.

SVEN: You said Magnuson and Anderson are on the State Canvassing Board!

OLE: Yah, for the recount they are but then they go back to being on the Supreme Court.

SVEN: So who’s on the Supreme Court while Magnuson and Anderson are doing the recount?

OLE: Well, there’s Anderson …

SVEN: But you said Anderson’s on the canvassing board!

OLE: That’s the other Anderson.

SVEN: So there’s still an Anderson on the Supreme Court?

OLE: Yah, he told Norm Coleman’s attorney, “This is not Florida.”

SVEN: “This is not Florida?” Well, who said it was?

OLE: Was what?

SVEN: Florida!

OLE: Magnuson said it was.

SVEN: Magnuson at the canvassing board said this is Florida?

OLE: No, Magnuson at the Supreme Court.

SVEN: There’s another Magnuson at the Supreme Court?

OLE: Roger.

A divided Minnesota Supreme Court ruled today that wrongly rejected absentee ballots should be counted in the U.S. Senate race. But the process ordered by the three-justice majority mandates that the campaigns of Sen. Norm Coleman and Al Franken agree that a ballot was improperly invalidated before it is included in the final tally.

The opinion was authored by Judge Helen Meyer, with justices Lorie Skjerven Gildea and Christopher Dietzen joining her in the majority. Justices Alan Page and Paul Anderson wrote strongly worded dissents, arguing that the ruling is inconsistent and inadequate for ensuring that every properly cast vote is counted.

The majority opinion concludes that local election officials do not have the authority under Minnesota law to amend their vote tallies to include improperly rejected absentee ballots. However, it then orders the two campaigns, the Secretary of State’s office and all county canvassing boards to create a process for determining which ballots were wrongly invalidated. If all parties agree that a ballot should be included in the final tally it will be counted. The ruling states that this process must be concluded by 4 p.m. on Dec. 31.

Roughly 1,500 absentee ballots may have been improperly rejected by local elections officials. With the race extraordinarily tight, the dispute over such ballots could ultimately determine the outcome of the contest.

Justice Page offered a blistering critique of the majority opinion. After first quoting Joseph Stalin (“I consider it completely unimportant who … will vote, or how; but what is extraordinarily important is this — who will count the votes and how”), he argued that the court’s ruling will disenfranchise voters. “The court’s order may seek the peaceful way out by asking the campaigns to agree on improperly rejected ballots,” Page wrote. “But the order does not guarantee that the candidates and their political parties will agree on any rejected ballot. Instead the court’s order will arbitrarily disqualify enfranchised voters on the whim of the candidates and the political parties without the benefit of the legislatively authorized procedures” under state law.

Justice Anderson countered with a quote from British playwright Tom Stoppard (“It’s not the voting that’s democracy, it’s the counting”) and was only slightly more reserved in voicing his disagreement with the ruling opinion. “I conclude that the majority’s opinion is flawed because it misreads Minnesota’s election laws, is internally inconsistent, and has essentially inserted this court into a political thicket based on a premise that lacks a basis under the law,” he wrote.

Despite the ruling’s convoluted prescription for including wrongly rejected absentee ballots, the Franken campaign praised the court’s actions. “We are pleased that the Supreme Court has rejected Norm Coleman’s attempt to win re-election by throwing out the lawful votes of Minnesotans who did everything right,” Marc Elias, the Franken campaign’s lead recount attorney, said in a statement.

The Supreme Court ruling came at the end of another long day before the state canvassing board. The five-member panel plowed through 642 contested ballots, providing a considerable boost to the Franken campaign. According to the Star Tribune’s independent analysis, the Democrat pulled to within just five votes of the incumbent — down from a 360-vote difference at the start of the day. With roughly 400 ballots still to be considered by the canvassing board, and the bulk of them being challenges lodged by the Coleman campaign, it appears likely that Franken will be ahead when this stage of the recount concludes. (The overwhelming majority of challenges have so far been rejected by the five-member panel.)

The canvassing board must still wrestle with one thorny matter: what to do about ballots that the Coleman campaign believes were counted twice. The canvassing board debated the question at the close of today’s session and seemed strongly inclined to avoid the quagmire of determining whether both duplicate and original ballots were counted in some instances. “I am terribly uncomfortable placing my imprimatur on something that I think basically requires more facts than I’ve got,” said Eric Magnuson, Chief Justice of the Minnesota Supreme Court and a member of the canvassing board.

The panel will make a final ruling on the matter when they reconvene tomorrow morning. But this issue (like so many others in the arduous recount process) looks like it will ultimately end up in the courts.

Regardless of what happens, Secretary of State Mark Ritchie vowed that the canvassing board will finish ruling on disputed ballots tomorrow. “People have agreed to stay until we’re done,” he said.

Coleman announced that he intends to attempt a risky use of campaign funds to pay high-priced attorneys and investigators to defend against charges that could result from an FBI investigation into $75,000 that his benefactor, businessman Nasser Kazeminy, is alleged to have funneled to Coleman via his wife’s employer. At least Coleman’s campaign has leftover cash after the most expensive contest in state history.

Coleman attorney Roger Magnuson’s ominous references to the 2000 presidential recount debacle in Florida so annoyed state Supreme Court Justice Paul Anderson that Anderson cut Magnuson off, saying, “This is not Florida.” At least Magnuson didn’t let Anderson go on and on about Florida while the sitting justices silently seethed.

At 11:41 a.m. yesterday, a Coleman attorney was observed surfing the J. Crew Web site during the second day of the State Canvassing Board’s review of ballots that rival Al Franken challenged in Minnesota’s statewide Senate recount. At least it wasn’t the Neiman Marcus Web site.

According to John Kostouros, communications director for the Court Information Office, this means that they have recused themselves from the case. Magnuson and Anderson are both serving on the statewide canvassing board, charged with overseeing the recount, which is named as a respondent in the case.

The lawsuit, filed by Sen. Norm Coleman’s campaign, seeks a temporary restraining order to stop local election officials from counting improperly rejected absentee ballots. Last week the canvassing board unanimously recommended that counties proceed with counting such ballots. The case is slated to be argued before the Supreme Court tomorrow afternoon.

Both Magnuson (the Chief Justice) and Anderson were appointed by Republican Gov. Tim Pawlenty. Their recusal from the case leaves five jurists to hear the matter: Alan Page, Paul Anderson, Helen Meyer, Lorie Skjerven Gildea and Christopher Dietzen. Gildea, Paul Anderson and Dietzen were all appointed by Pawlenty. Meyer was appointed to the Supreme Court by Independence Party Gov. Jesse Ventura in 2002; Page was elected to his post in 1992.

Because 2008 is a change election, Tingelstad might have a shot. On the statewide ballot, the voter knows which candidate is the incumbent — it’s marked with an “I” next to the incumbent’s name. Tingelstad beat out one other primary challenger in September to ensure that he’ll be one of the top two vote recipients to advance to the general election. (He garnered 22 percent of the statewide vote to Anderson’s 63 percent.)

Tinglestad at his campaign launch event, via HighestHill.com

Officially, Tingelstad says his campaign is mainly concerned with maintaining the election of judges in Minnesota, a process that has been under serious criticism for years. But his campaign web site tells a different story.

“As God’s Word has been removed from our public lives, the resulting darkness has led to our present social disorder and political divisions,” his website, Highest Hill, reads. “The correction of these problems will only begin when the Light of Truth is returned to our land’s highest hills, the Supreme Courts. Until our highest courts return to an acknowledgment of the existence of God and His Truth, the people will continue to walk in the confusion of darkness.”

The separation of church and state, Tingelstad argues, is a myth. Justices should rule from the “Word of God” first, and from sources such as the constitution, statute and case law second.

The church that Tingelstad advocates injecting into the judiciary is not quite mainstream Christianity, either. Until mid-September, his campaign website had a section for volunteers called “Gideon’s Army.”

Today’s Secular Humanists, like the Midianites, appear to have the upper hand in our culture. When we sow the seeds of faith from God’s Word into our children, the Secular Humanists come against us and destroy the crops by teaching against the things of God in our schools. The people of God are being told to retreat into the caves and dens of our church buildings and homes.

The primary weapons used by the Secular Humanists have been our schools and our courts, which have indoctrinated the people into a belief in a false wall of separation between church and state.

Gideon’s Army refers to a battle in the Book of Judges where 300 Israelites vanquished 100,000 Midianites. It is also the name of a rebranding effort by members of the Joel’s Army movement.

“There is a commonly held belief in the church that the army of Joel and the army of Gideon both represent the same end time, militant and victorious church,” wrote Robert Holmes, a prophetic visionary in the Pentecostal movement, back in 1995. (For a glossary of terms related to Joel’s Army and Pentecostalism, see the Minnesota Independent report, God’s Army: A short guide to Sarah Palin’s extreme religious worldview)

In contrast, incumbent Justice Paul Anderson’s re-election campaign centers on judicial fairness for everyone. His campaign web site says:

Justice Anderson has participated extensively in professional and civic activities, particularly those involving court interpreters, multicultural diversity and racial fairness in the courts, legal education and writing, the selection and performance of judges, and access to justice.

Among other activities, he has served as chair of the Court Interpreter Advisory Committee, member of the Implementation Committee on Multicultural Diversity and Racial Fairness in the Courts, member and chairman of the Minnesota Judicial Selection Commission, and adjunct professor of the University of Minnesota Law School.

Anderson is also a Christian; he attends the House of Hope Presbyterian Church in St. Paul. Anderson has not made his faith an issue in his campaign nor made it a litmus test for judicial office.