Experts: Prognosis grim as Coleman runs out of legal options
By PAUL DEMKO 6/3/09 4:02 PM
minnesotaindependent.com
The end is near in the U.S. Senate contest. That might seem difficult to believe given that the fight has now dragged on for nearly seven months, but the bottom line is that Republican Norm Coleman is running out of legal options.
Election-law experts who have tracked the case closely are unanimous in believing that Coleman’s appeal before the Minnesota Supreme Court will fail — and that it will likely be by a unanimous decision. That will clear the way for Democrat Al Franken to be seated in the U.S. Senate.
Guy-Uriel Charles, a law professor at Duke University, said in an interview that Coleman has a simple problem: He’s asking the justices to ignore state rules pertaining to which absentee ballots are counted. “What he’s asked the Supreme Court to do, as well as what he asked the district court to do, is to ignore Minnesota law as it is written,” Charles said. “There didn’t seem to be a single justice on the court for whom this works.”
Assuming that Charles and other legal observers are correct, the question then becomes whether the state Supreme Court orders Gov. Tim Pawlenty to sign an election certificate, as Franken has requested. If the court fails to do so, Pawlenty would have some wiggle room to resist signing a certificate, thus ingratiating himself to the Republican leadership in Washington, D.C., that would rather see Franken out on the street.
“As soon as he signs it voluntarily, he’s dead meat with Republicans nationwide,” said David Schultz, a professor of law and political science at Hamline University. “They’re never going to remember eight years of no new taxes. They’re going to remember you voluntarily put Al Franken in the Senate.”
But Franken’s legal team would undoubtedly return to the courts immediately seeking such an order. “I can imagine a two-stage dance as opposed to a one-step process,” said Edward Foley, a law professor at Ohio State University who has closely tracked the Minnesota recount saga. “It might require some additional legal skirmishing.”
If Pawlenty is eventually ordered by the court to issue a certificate, as seems likely, he would have little choice but to comply. While many political pundits have observed that the Republican governor’s decision not to seek a third term liberates him to resist calls to sign off on the election, defying the state’s top court would be an extraordinary act.
“I just don’t think the governor is going to have a showdown with the courts on the election certificate,” Charles said. “I just can’t imagine that.”
If Pawlenty were to take such an audacious step, he’d face the prospect of being found in contempt of court. The consequences would likely be a fine or even a stint in jail.
Even if the governor does refuse to sign an election certificate, that doesn’t mean Franken won’t be seated. Although the U.S. Senate has so far agreed to hold off while the election contest is sorted out in the courts, it’s likely that the Democratic-controlled body would lose patience at that point.
“They have insisted on the certificate up until now,” Foley noted. “But it is possible that if the governor refused to issue the certificate in defiance of the Minnesota Supreme Court, the Senate could say it’s now time to seat him.”
Coleman has been adamant that he will pursue every possible legal avenue in the contest. But his supporters in Washington, who have continued to raise money to cover his legal bills, may lose enthusiasm if Franken is seated. With Senate Democrats holding a filibuster-proof majority, and the likelihood of Coleman prevailing diminishing with every new legal ruling, the impetus to fight on may dissipate.
But if Coleman presses on into the federal courts he would have two options. He could file a new lawsuit in U.S. District Court. The difficulty there is that the former senator’s federal claims have already been addressed by the state courts. In non-legal terms, he’s not entitled to two bites of the apple. Unless a federal judge determines that those claims have not been adequately dealt with in the state courts, he’s likely to dismiss the case. Given that the three-judge panel that heard Coleman’s initial contest weighed testimony from 142 witnesses and nearly 20,000 pages of legal documents, such a determination seems unlikely.
“It’s possible that Coleman could find a friendly federal judge,” Foley said. “I think the odds are way against it, but it could happen.”
Coleman’s other option is to appeal to the U.S. Supreme Court. Most legal observers agree that the court is highly unlikely to wade into the electoral morass. Foley notes, however, that back in 2000 most such experts strongly believed that the Supreme Court wouldn’t intervene in Bush v. Gore.
“A lot of people had egg on their faces,” he said. “Until they say no it’s at least a theoretical possibility that they could say yes.”
So when might Franken be seated? Schultz believes that the Minnesota Supreme Court will rule by the July 4 holiday and that Franken will make his way to Washington shortly thereafter. “I would see Franken seated sometime no later than the third week of July,” he said. |
