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The Franken/Coleman oral arguments this morning: a couple of things to listen for

I asked election law expert Guy-Uriel Charles what to look for this morning in the MN Supreme Court's questioning of the Franken and Coleman lawyers. I thought his advice was smart:

First, is the court asking about remedies. If so, it means that they are taking Coleman's argument seriously.  At the most serious, if the justices' questions seem to be based on the premise that Coleman has raised a serious problem with the election results as they now stand, but they are struggling to find the remedy to the problem, then, wrote Charles in his email to me, "they're likely to reverse," which most likely would mean the case will be remanded to the Election Contest Court for more counting.
 
On the other hand, if their questions to Team Coleman focus on procedural questions (standard of review, clear error by the lower court below etc.,), that is bad for Coleman. (Guy Charles didn't say this, but I will. The state of the evidence, for example the small number of absentee ballots for which Team Coleman proved that the voter was registered, or the late introduction of various claims and arguments, give the court plenty of opportunities to throw out Coleman's case without getting to the meat of the argument.)

Prof. Charles (he's at Duke now but formerly of the U of M Law School) said that if the justices devote much attention to Franken's request that the court should order the governor to sign the certificate, that's "a clear indication of lights out for Coleman."

Lastly, Charles said in his e-mail, he wonders whether the MN Supremes are thinking about the possibility that Coleman will take the case to the U.S. Supreme Court. "I will be looking for hints that the U.S. Supreme Court is in the back of their minds.  Quite frankly, that might be Coleman's best strategic move: 'if you don't resolve the Federal constitutional questions properly, the U.S. Supreme Court will step in and embarrass you nationally."  When you know you are not the court of last resort, you tend to be a bit more conservative."

 

 

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