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.”

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.”