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Eric Black Ink

An explanation for why Coleman hasn't filed notice of appeal

By Eric Black | 04/17/09

Early this week, I defended Norm Coleman against the common Dem complaint that the continuation of his legal case is intended entirely to delay the inevitable seating of Al Franken. I haven't seen the dilatory tactics to back up such an allegation.

But I also said that if Coleman fails to file his notice of appeal to the MN Supreme Court early in the 10-day window, I would consider that to be a dilatory tactic.

Day 1 would have been Tuesday. On Wednesday, (Day 2) when Coleman lawyer Ben Ginsberg spoke to the media by conference call, he said that the notice would not be filed until "next week." Next Monday would be Day 7, and Ginsberg didn't say Monday, he said next week. He said Team Coleman needed more time to study the ThreeJudges ruling.

The form to notify the court of the appeal is a short, easy-to-prepare document. It does not require study of the ThreeJudges ruling (unless Coleman is trying to decide whether to appeal, but Coleman and Ginsberg have stated that the appeal is a certainty.)

I would say that by Monday, Coleman/Ginsberg will have blown the opportunity to send the message that they are not stalling.

However, I did have a chance to ask Coleman Campaign Manager Cullen Sheehan why Ginsberg would have to spend a week studying the ruling. He replied that once the notice is filed, the Supreme Court will be able to set a deadline for Team Coleman to submit their appeal brief. In the 2000 Supreme Court case of Bush v. Gore, the lawyers were given only a few days to write their briefs. Perhaps the MN Supremes would give Coleman only a few days. By waiting to file the notice, Team Coleman adds some days to write their brief, Sheehan said.

This was certainly a better reason than Ginsberg gave (since Ginsberg's reason made little sense). Sheehan's reason would make sense if there was any reasonable likelihood that the Supreme Court was not going to give reasonable time for the briefs.

But there is no very good reason to think so. Bush v. Gore was a case driven by insane deadline pressure, pressure that in the end was the excuse or reason that the U.S. Supremes gave for not allowing a recount of the deeply flawed Florida 2000 presidential election -- much more deeply flawed than the 2008 Minnesota senatorial election.

There is nothing in this case that resembles that pressure, and no reason that the MN Supremes wouldn't give the parties reasonable time to write their briefs. Minnesota has all the time it needs to complete its process and the entire story to date has been marked by a willingness to take all the time necessary to do it right.

In the end, the difference between a Coleman notice on Day One versus Day Ten is, well, nine days. Not so much in the context of this case. I am resisting the widespread Dem spin that every additional day the seat remains open is a scandal or a tragedy. But whatever extra days are wasted on an unnecessary step will very likely simply be added to the time consumed by this next phase. This delay undermines any claim Coleman might make that he is not stalling.

Of course, if Coleman were to adopt the "modest proposal" I suggested a couple of days ago, he wouldn't have to worry about any perceptions that he is stalling. Several people have suggested that I inquire whether Coleman might want to adopt the modest proposal or, if not, why not? I am endeavoring to get an answer to that question.

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Comments (6)

Submitted by Alan Paulson on April 17, 2009 - 10:21am.

I think his attorneys simply want to get a head start on their appellate brief. As soon as they file their notice of appeal, they lose all control over the scheduling, and could for example be ordered by the MN SC to file their brief in as little as three days. Faced with that uncertainty, it makes a lot of sense to get as much of the brief done as possible before filing the notice of appeal.

Submitted by Steve Titterud on April 17, 2009 - 11:15am.

Which of his 10 days he chooses to file is not a matter of any substance in this case.

What's more interesting to ponder is what all the stakeholders on the Coleman side are talking about amongst themselves during these 10 days. There are a lot of stakeholders - the Senate leadership; national GOP campaign people; donors, of course! - and don't forget Coleman himself, who has a future to consider.

Is there any controversy or debate taking place within this team?

This hiatus would be a natural time to review their overall strategy (including the role of any actions they may take in federal court), get second opinions, press the flesh of the supporters, make sure everyone's on board, see to it all the money's in place to pay the increased costs, smooth out any wrinkles. It would be wise to bring a satisfactory conclusion to any lingering debate within the whole group, if there is any dispute. And of course they have a little research and writing to do, or review if it's been done already.

Submitted by Bill Krause on April 17, 2009 - 11:25am.

"I am resisting the widespread Dem spin that every additional day the seat remains open is a scandal or a tragedy."

No you're not. That's the entire point of your post.

Submitted by Mark Radosevich on April 17, 2009 - 1:19pm.

I agree that it doesn't much matter when he files his notice of appeal, since everyone knows it's coming (unless he actually misses the deadline).

I don't think he can, or should (from his perspective), agree to seat Franken provisionally. Keeping Franken out of the Senate is the only motive Coleman's donors have for paying his legal bills. On top of that, any future Coleman has in politics will depend on his Republican allies, and caving in to the DFL will make them drop him before his press conference ends. Politically, Coleman has no incentive at all to give any ground, and considering how much the two men detest each other, I expect the appeals will continue as long as the courts-- and fundraisers-- allow.

to Bill Krause,

I trust that when you read the post more carefully, you can either point out where Eric expresses any opinion on the consequences (good or ill) of a delay in seating the state's next senator, or admit to having advertised your misreading of his article.

Submitted by Jonathan Swift on April 18, 2009 - 11:05am.

Team Coleman claims to be concerned about adequate "research time" for their next round of dubious briefs, eh? Well, the citizens of MN are delighted to accomodate you as always, Norm!

Norm's appeal will turn on the exact "equal protection" argument he briefed to the ECC, the only change is responding to how the ECC disposed of his argument. His other issues were also extensively briefed to the ECC and can be quickly mined and modified to address how the ECC handled them.

But the main point here---completely ignored by all MSM--is that Coleman has literally NO viable precedent supporting his claims, and that he is holding up the seating of a newly elected senator based on nothing, no case, no applicable precedent.

There is certainly no Minnesota case which supports any of his claims about absentee ballots or lost ballots in the slightest.

As for his federal "equal protection" argument, literally the only case he can rely on is Bush v Gore. Now there's a compelling precedent for holding up an election---a case that refused to allow a state recount to continue! The 5 conservative Repub justices signing that thing specifically said it was not to be used as precedent, and it's not applicable to facts of the situation of the MN recount anyway.

So Coleman has no case that is directly applicable to his claim, yet he asserts with certainty that his "rights" and some unspecified voters "rights" have been violated, without proof and with no support in the applicable cases. He is holding up (for MONTHS) a senate election because of HIS interpretation of "equal protection", not the existing interpretation of ANY court.

And one wonders why some crazy leftists might conclude that the whole exercise of "Coleman's Case" has been cooked up, filed and funded merely for delay.

Submitted by JerryZ on April 18, 2009 - 9:16pm.

As a Washingtonian and a Seattleite, I have been comparing the MN recount and Coleman's lawsuit to the 2004 gubernatorial contest between Rossi and Gregoire, where the margin of victory was closer than MN (129 votes). Several comments.

There were some serious problems in King County (Seattle's county). The original count was botched up. The recount did not go smoothly. After the election, the Election Director was fired.

Sam Reed, the Republican Sec'y of State, meritoriously handled the mandatory machine recount and subsequent hand recount. The Democrats requested and funded a hand recount. In spite of several controversies, Reed declared Gregoire, the Democratic candidate, the winner and certified the election at the end of December, less than 2 months later.

The GOP sued in state court and lost in June 2005. The judge upheld the election.

Reed did a splendid job. I often wondered why he wasn't the governor. At the time, I thought that election and recounts were a very messy affair.

Now, looking at the MN senatorial election, recount and lawsuit, I also have some comments.

Compared to the WA election, your election and recounts were handled very well.

The lawsuit filed by Coleman, based upon what I saw as an outsider, was frivolous, arbitrary and capricious. The ruling by the ECC bolstered that judgment on my part.

Norm Coleman looks as preposterous as Jim Tedisco in NY, who wants a county supreme court to declare him winner even though is behind in the recount by 264 votes. The GOP, if it had any sanity, statesmanship, class and reasoned thought left, has now demonstrated, with extraordinary hubris, that it has nearly a complete dearth of sanity, statesmanship, class and reasoned thought. Nobody likes self-serving, sore losers.

Final point. Part of the delay for filing an appeal may be explained by this report out at TPM (http://tpmdc.talkingpointsmemo.com/2009/03/minnesota-closing-arguments-t...).

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And it's also normal procedure in such civil cases, Schultz (Hamline University professor David Schultz) explains, for a losing party that appeals to then be served a court order requiring them to place in escrow the amount for which they are currently liable. So if Franken's lawyers are smart people -- and nobody would doubt that they are -- Schultz sees it as very likely that they would seek to force Coleman's committee to procure millions of dollars up front just so they could start an appeal. "I think it's very likely -- not a certainty but very likely -- a court would agree with that," said Schultz, "for the Coleman campaign to provide the costs and legal fees."

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