Minnesota's Senate race now comes down to 5 votes

By PAT DOYLE, Star Tribune
Last update: May 30, 2009


Now it comes down to five votes.

Almost seven months after a U.S. Senate election that was too close to call, five justices of the Minnesota Supreme Court will hear arguments Monday on whether problems with absentee ballots justify reversing a lower-court ruling that declared DFLer Al Franken a 312-vote winner over Republican Norm Coleman.

Partisans across America will be watching, pronouncing judgment on a thousand blogs. The case may cast a blinding national spotlight on the state Supreme Court.

A decision upholding the lower-court ruling could end the protracted struggle and allow Franken to join the Senate, giving Democrats an invincible majority. A ruling for Coleman wouldn't return him to the Senate, but could keep his hopes alive and delay a final decision for months.

Minnesotans want the dispute to end, recent polls show. Most people say Coleman should concede. Nearly two-thirds believe that Franken ultimately will be declared the winner.

But several former Minnesota Supreme Court justices say current members will consider the case carefully, ignoring outside publicity and pressure.

"The impatience of the people just has to be put aside," said former Associate Justice Jim Gilbert, who served on the court for seven years with most of the justices hearing the case. "You want a correct decision at this stage, not a fast decision.

"They will not be reacting to talking heads or political action groups ... or anything like that," Gilbert said. "This decision has to stand the test of time. It will be gone over with a microscope."

Former Chief Justice Russell Anderson agrees.

"They understand every decision they make has the potential to go to the United States Supreme Court," Anderson said. "They're not going to decide this on the publicity. They're going to decide this on the law."

One former Minnesota justice knows what it's like to issue an opinion in a politically overheated election case.

Five days before the 1990 gubernatorial election, then-Associate Justice A.M. (Sandy) Keith, once one of the state's most prominent DFL politicians, agreed with others on the court on a key issue: that Arne Carlson should take the place of Jon Grunseth on the ballot after Grunseth withdrew as the Republican candidate for governor. The ruling paved the way for Carlson to defeat Gov. Rudy Perpich, a DFLer who had just elevated Keith to take over as chief justice.

"I still carry that with me," said Keith. "The governor [Perpich] thought I was responsible for it. He tried to take the position away from me -- thought about it. He wouldn't even come to my swearing-in.

"I think it was the right decision, and I never had any hesitation about that," Keith said.

While Monday's hearing will produce yet another dramatic climax in this seven-month saga, some believe it will be mostly anti-climactic for the justices, who weeks ago received detailed briefs from the lawyers in the case.

"These justices will have had over two weeks, including three weekends ... to work on the case," said Richard Hasen, an elections expert at Loyola Law School in Los Angeles who has followed the case closely.

"It would not be surprising to me that they would come into the arguments with their minds mostly made up, [and] also with drafted opinion or opinions in front of them."

Keith said arguments delivered in court rarely swayed him in the end.
"In many instances, I had made up my mind in the sense I thought it was going in this direction," he said.

The court and the challenge

The court will have two fewer members hearing the case than its usual seven because Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson sat on the state Canvassing Board for the recount and have declined to participate in related court proceedings.

Minnesota Supreme Court expert Peter Knapp, a William Mitchell law professor, has watched the remaining five in action. His thoughts:

• Alan Page: "Well aware of the importance common sense plays in the life of the law. You'll see opinions of his that remind the court, sometimes gently and sometimes not so gently ... that when a decision doesn't reflect that kind of common sense it may be out of kilter with where the law should go."

• Paul Anderson: "Really appreciates the value of history in shaping the law ... to a greater degree than some of the other justices."

• Lorie Gildea: Dissented when she "believed the court was making a decision that really belonged to the trial judge."

• Helen Meyer: "Writes opinions that I think reflect her experience and her values."

• Christopher Dietzen: A recent appointee with fewer written opinions, "It's much harder to tell ... anything about his particular cast of mind."

The five have ruled unanimously on earlier matters in the case, but split on the issue of allowing Coleman and Franken to veto the counting of some disputed absentee ballots. Paul Anderson and Page dissented.

On Monday, each side will have 25 minutes for arguments, with Coleman allowed an additional 10 minutes for rebuttal. He has the burden of proving that the three-judge panel that heard the trial made sufficient mistakes to overturn their verdict.

His legal team turns to Joe Friedberg to make their case, a veteran, high-profile criminal defense attorney but relative novice at election law. "Norm decided ... Joe is the best guy to make the argument," said Coleman legal spokesman Ben Ginsberg.

Franken will rely on Marc Elias, a national Democratic Party lawyer who specializes in election law.

Court experts will watch to see whether the justices direct more skeptical questions to either Coleman's or Franken's team. But such questioning could merely reflect a devil's advocate approach, in which judges interrogate the very side they are leaning toward.

Wide discretion

A Supreme Court decision could take days to months, with the prime options being upholding the lower court ruling for Franken or reversing it and ordering the panel to reconsider aspects of the case.

The court "cannot say that Coleman won," said University of Minnesota constitutional law expert Fred Morrison. "A Coleman 'victory' in the Supreme Court would mean several more weeks or months of more recounting-type stuff."

Aside from attacking the merits of Coleman's case, Franken argues that the Republican's key claims should be dismissed because he didn't bring them early enough in the trial.

"I think the justices will at least consider whether or not the public interest and timing is a relevant factor" before examining Coleman's claims, said Edward Foley, an election law expert at Ohio State University.

But Knapp said the high court has wide discretion to ignore procedural arguments and consider the main question: Were the election and recount fair and accurate enough to bring this dispute to an end?

Pat Doyle • 651-222-1210