The Minnesota Statute on election contests contains a passage (that has so far gone mostly unnoticed) that could provide the ThreeJudges with an interesting option (that has so far gone mostly undiscussed).

The statute in question, Minn. Stat. § 209.12, which outlines the ways and means of a Minnesota election contest involving a congressional election, instructs the ThreeJudgePanel to answer one and only one concrete question: Who got the most votes? This sentence has often been quoted, by Team Franken and by the courts, and has been a barrier to Team Coleman's efforts to get the Contest Panel to consider more ethereal questions, like: Can you really be sure who won an election this close?

The sentence is pretty gol-durn clear. It states:

"When a contest relates to the office of senator or a member of the House of Representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election."

That passage is among the reasons that most close observers of the trial, including Coleman's chief trial advocate Joe Friedberg, believe that Coleman will not get the ruling he wants out of the ThreeJudges. (The Three, by the way, may come back into view any day, not to make a final order, but to indicate which of the remaining disputed ballots they will examine.)

Professor Guy Uriel-Charles, an election law specialist who has followed the case closely, said the ThreeJudges seem to have "taken primary comfort from that very specific language telling them what their job is. Without that language they would be operating in a complete ether. My sense is that they have taken that as very serious guidance as to what they're supposed to do and what evidence is relevant to their mission."

But a couple of sentences down from the sentence quoted above, the same statute tells the judges what to do with other evidence, information and arguments that came up during the trial:

"Evidence on any other points specified in the notice of contest, including but not limited to the question of the right of any person to nomination or office on the ground of deliberate, serious, and material violation of the provisions of the Minnesota Election Law, must be taken and preserved by the judge trying the contest... But the judge shall make no findings or conclusion on those points. After the time for appeal has expired, or in case of an appeal, after the final judicial determination of the contest, upon application of either party to the contest, the court administrator of the district court shall promptly certify and forward the files and records of the proceedings, with all the evidence taken, to the presiding officer of the Senate..."

I'm not a lawyer. Don't even play one on TV. And I have seen or heard nothing to indicate that the judges have focused on this latter passage, let alone whether they plan to do anything with it. I can tell you that the Minnesota Supreme Court, which will almost surely be asked to review what the ThreeJudges decide, took note of the passage and paraphrased it thus:

"Nevertheless, evidence on any other issues specified in the notice of election contest is to be preserved and forwarded to the presiding officer of the Senate."

To the degree that the judges take that language seriously, it seems to give them an opportunity, bordering on a mandate, to give the Senate more than a simple statement of who got the most votes. There is evidence, in the trial record, that different Minnesota counties used different procedures and applied different standards in deciding which absentee ballots to open. I don't know how close Team Coleman came to proving this as a statistical fact, but they convinced me that the millions of votes that were counted included hundreds, perhaps thousands, that were not held to the same high standards that the ThreeJudges have used in deciding what votes to count at this stage.

Team Coleman has argued that this means the count on which the ThreeJudges are relying to decide who got the most votes is tainted and that it is not really possible to know the real count or identify the winner. I have written before that this is not a terrible argument and represents the best hope Coleman has. But there are many problems with it. The ballots that perhaps should not have been counted are mixed in with the rest and cannot be separated. When the ThreeJudges asked Team Coleman what they could do about this problem, Coleman lawyer James Langdon offered two suggestions: either subtract votes based on a statistical estimate to "correct" the count, or order a new election. These are audacious suggestions, without precedent in Minnesota and without any basis in existing Minnesota law. If Uriel-Charles is right about the judges' reliance on the "only question to be decided is which party got the most votes" mandate, they would surely be reluctant to adopt either suggestion. Friedberg, in his recent radio interview, said he hoped to do better with the argument on appeal.

The ThreeJudges may just say no to those suggestions. If they do, perhaps they will discuss their reasons (the statute does instruct them to "make findings of fact and conclusions of law" in support of their order). But, if they have qualms about the imperfections of the final score that the statute requires them to render, the second passage of the statute gives them a suggeston that is both statutorily and constitutionally sound: tell the Senate what the evidence showed on these points.

Article I, Section 5. of the U.S. Constitution states very plainly ("each House shall be the judge of the elections, returns and qualifications of its own members") that it is ultimately up to the Senate who is seated. The Senate has no state statute telling it what it can or can't take into account. No less an authority than Antonin Scalia, back when he was an appellate judge, wrote that the courts had no authority to intrude on the Senate's power to decide who sits.

I'm not sure which side would be helped or hurt if the ThreeJudges handed the existential questions off to the Senate. Franken might see it as a happy reminder to the U.S. Supreme Court (shades of Bush v. Gore) that it has no business in the case. And Democrats, who hold a 58-41 Senate majority, would like their chances of getting Franken seated, once he had that certificate of election. Team Coleman would rather win in court, but as that outcome is unlikely, a report from the judges expressing such qualms might arm the Senate minority for a last stand. They would have to hold the support of 40 of their 41 members. Every Senate watcher I've asked thinks Republican resistence to Franken will collapse if he gets the certificate. But if Senate Repub Leader Mitch McConnell did want to make a stand, Uriel-Charles said that "having something from the three judge panel could be quite helpful. You could see Mitch McConnell waving it around."