Three-judge panel makes its view clear: Minnesota’s electoral process is nothing like Florida’s. | AP photo composite by POLITICO Coleman-Franken: new Bush v. Gore?

With its angry charges about voter disenfranchisement, a controversial hand recount and a high-stakes courtroom drama, the battle between Norm Coleman and Al Franken in Minnesota is beginning to look a lot like Bush v. Gore.

Or is it?


Coleman has raised the epic 2000 election fight – and the 5-4 Supreme Court decision that resolved it – in trying to make the argument that Minnesota violated the U.S. Constitution’s Equal Protection Clause by allowing different counties to use different methods to count absentee ballots. Coleman has even retained a legendary Bush v. Gore figure, Republican lawyer Ben Ginsberg, to help represent him.

But in ruling against Coleman Monday night, a three-judge panel made its view perfectly clear: This case is not Bush v. Gore, and Minnesota’s electoral process is nothing like Florida’s.

“The citizens of Minnesota should be proud of their election system,” the three judges wrote in a sweeping opinion that roundly rejected Coleman’s arguments.

Unlike Florida in 2000, Minnesota has laws in place that spell out the procedures for a recount and set standards to help determine which ballots could be accept and rejected. While hanging chads from punch-card ballots loomed large in Florida, Minnesota has optical scanners deemed reliable by statewide audits. And while the legal proceedings in 2000 were filled with split judicial decisions, often breaking down on partisan lines, the unanimous ruling of the three-judge panel gives Coleman little basis to argue that he’s the victim of a partisan judiciary.

Unless the Minnesota Supreme Court rules in his favor – or at least some judges dissent from a majority ruling against him – “it’s going to be a ton of bricks on Norm Coleman’s back,” said Lawrence Jacobs, director of the Center for the Study of Politics and Governance at the University of Minnesota.

“Coleman is helped when there is doubt,” Jacobs said. “What’s been very apparent is that there is no doubt up until this point.”

On Tuesday, Republicans argued that the entire process is filled with doubt.

In a fundraising plea to supporters, Sen. John Cornyn, the chairman of the National Republican Senatorial Committee, said that the court’s ruling was “fundamentally misguided” and failed to resolve the equal-protection and due-process violations alleged by the Coleman campaign, saying that some 4,400 absentee ballots remain uncounted.

“It’s frankly shocking that many of the same Democrats who so loudly decried voter disenfranchisement during the Florida recount in 2000 have so quickly run away from that principle when it no longer fits their political agenda,” Cornyn said.

But there’s another catch for Coleman and his Republican allies: Their equal protection arguments rely in part on the decision in Bush v. Gore – a decision that came with a disclaimer: “Our consideration is limited to the present circumstances,” the Supreme Court majority said, “for the problem of equal protection in election processes generally presents many complexities.”

The three-judge panel in the Franken-Coleman case took pains to point out how circumstances are different in Minnesota. While acknowledging that errors were bound to happen in any election, the court said that the Minnesota Senate election was free from fraud and that errors did not reach a constitutional violation of equal protection.

“There is no evidence of a systematic problem of disenfranchisement in the state’s election system, including in its absentee-balloting procedures,” the judges wrote. “To the contrary, the general election resulted in a ‘fair expression’ of the voters of Minnesota.”

Ginsberg said Tuesday that the judges spent “so much time in patting their back on the Minnesota system” that they “missed the issue” that thousands of voters are still being disenfranchised. He argued that Coleman had his due-process rights violated since the court changed its rules in midstream – an argument that could be raised at the federal level – and that on appeal to the state Supreme Court, the GOP argument will center on those 4,400 uncounted absentee ballots.

“We’ll be at peace if all Minnesotans are enfranchised,” Ginsberg said.

But Marc Elias, Franken’s attorney, said Tuesday that ballots are often rejected for “a lot of really good reasons,” like people voting who are not eligible, not registered or are convicted felons. And he predicted that if Coleman loses and seeks review from the U.S. Supreme Court, the high court may decline to get involved.

“It’s extremely unlikely that the U.S. Supreme Court would have reason to take it,” Elias said, citing the court’s usual reluctance to dive into electoral matters.

But it takes only four of nine justices to grant certiorari – a move that would once again put the court in the position of deciding an election.

Coleman’s campaign committee reported no debt, while Franken said it had racked up $1.3 million in debt. And Franken released separate numbers showing that the Minnesota Democratic-Farm-Labor Party has $465,000 in cash to spend on the race.

This article tagged under: 2010

Politics