I've never actually met Ohio State Election Law Prof. Ned Foley in person, but have come to rely on him during the Coleman/Franken Megillah. In late-night phone calls and via email he has helped me understand the legal issues, and has also shared his expertise through his own writing and he has done so again with two pieces since the big ruling.

On Wednesday, in a piece actually published on MinnPost (but I wanted to specifically commend it to Black Ink readers who don't read everything on the site) Foley argued that in addition to rescuing Minnesotans from the long recount/contest/appeal purgatory, Tuesday's big ruling was also the first appellate case that dealt with the elusive meaning of the Bush v. Gore/Florida 2000 precedent in a post-election matter that had several similarities to Bush v. Gore (BvG).

In addition to its weirdness and internal contradiction, BvG included a strange passage that sort of did, sort of didn't advice future courts not to consider it a binding precedent. Foley says the MN Supremes says Coleman v. Franken provides important guidance for future cases:

"The Minnesota Supreme Court opinion, like the unanimous trial court ruling it affirms, holds that the Equal Protection principle of Bush v. Gore is not violated when a state statute provides a clear and specific rule for local officials to follow in the counting of ballots, even if some local officials fail to follow that clear rule.  As long as the local officials' failure to follow the clear and specific state rule, even if deliberate, was not designed to favor one candidate over another (or otherwise discriminate improperly among classes of citizens), that failure—while regrettable—is not unconstitutional.

...The Minnesota Supreme Court thus cabins the scope of Bush v. Gore, making it the exception rather than the rule when it comes to evaluating the conduct of local election officials in vote-counting process.  This treatment of Bush v. Gore is likely to be persuasive to other state supreme courts as well as to federal appeals courts and, indeed, the U.S. Supreme Court itself.  Thus, Coleman v. Franken will set the governing standard for analysis of Equal Protection claims in post-election disputes over which candidate won, and Bush v. Gore will constitute a narrow exception to that governing standard."

I think nailed Foley it.The very next day, in an email that he also posted on his OSU blog, Foley -- whom I have come to know as a generous, cautious, courteous scholar -- could not restrain the umbrage he took from the ridiculous Wednesday morning Wall Street Journal editorial that said "Mr. Franken now goes to the Senate having effectively stolen an election."

The WSJ editorial page has long been a bastion of Republican/conservative opinion. But it used to have a reputation one of the smartest places to read those views. No more. The Journal is now so blinded by partisanship that it is willing to implicate the Minnesota Canvassing Board, the three-judge panel, and the Minnesota Supreme Court -- each of which had more Republicans than Democrats and each of which reached unanimous rulings, of a conspiracy to steal the election on behalf of Democrat Franken -- except that the Journal isn't even honest enough to acknowledge this libel.

Foley does a better and fuller job of exposing absurdity of the editorial, and concludes:

"In sum, whatever criticism the WSJ or others might have about the way the Canvassing Board or the state judiciary handled the issues presented to them, this election was about as far from 'stolen' as any extraordinarily close and intensely disputed election could be--and to use that term in this context is to rob it of appropriate meaning for those situations in which election officials abuse their power to throw an election for a preferred candidate, thereby robbing an opponent of a rightful victory.  LBJ's Senate primary victory in 1948 is generally understood to be a “stolen” election of this kind, where the use of the term is appropriate."

Unbelievable. True, El Rushbo may have grounds for begrudging a Senate seat to a former author who once called him "a big, fat idiot." But I don't care. Comparing Minnesota's election to the recent one in Iran is idiotic.

Limbaugh did it Tuesday. The audio is here.

Or, if you prefer to read it

LIMBAUGH: "Look at this. From Iran's press television, the state-run media in Iran: Ahmadinejad gains votes in recount, just like in our country! It had -- just like in our country. Norm Coleman wins in Minnesota in a recount, and they keep having recounts, and Al Franken wins. So they had the recount in Iran, and shazzam! Ahmadinejad gained votes!"

Your humble ink-stained wretch can't provide a yes or no answer to the headline question. The answer may be unknowable at present, meaning Norm Coleman may have honestly not decided, at least not finally. The current conventional wisdom is that Coleman will run. And there certainly are good facts and arguments to support the proposition that Coleman will make a strong candidate if he does run and that his life story so far suggests that he will.

But I've been talking to some of my best sources, especially in Republican circles. They see and hear things the rest of us don't. And, based on what they tell me, I am increasingly convinced that when the answer is knowable (and some of them think it already is), the answer will be: No.

Of those Repub insiders who claimed to have a strong, clear impression, the impressions ranged only from, "No, he will not run, and he told me as much" to, "He doesn't seem to be thinking about it that seriously" to, "He is extremely, maybe 94 percent unlikely to run" for governor in 2010, but of course that leaves open the 6 percent possibility that Coleman will still decide to do so.

Safe position

The safe position is that Coleman hasn't ruled anything in or out, that, now that the Senate race is finally behind him, he will follow a serious, rational and potentially lengthy process of considering the race. In his gracious concession press conference Tuesday, when he said, "As to my future plans, that’s a subject for another day," it was the perfect tease for the next phase, closing no doors. 

Republican analyst Tom Horner (of the Himle Horner public affairs/PR firm) was willing to go on the record (in an email) with what he is seeing and hearing:

"Norm Coleman is actively exploring the reception his candidacy would receive from the Republican faithful. So far, I believe he is hearing more positive than negative, in part based on the lack of excitement over other candidates.

"My guess, though, is that he will stay low profile, perhaps announcing that he will be talking/listening to Minnesotans how he can best serve the state, etc. He brings a lot of political assets, not least of which is a capacity to raise funds -- a quality that becomes hugely more important with the de facto death of publicly financed gubernatorial campaigns and the potential for Republicans to be facing a candidate like [Matt] Entenza or [Mark] Dayton.

"Coleman has demonstrated a remarkable resiliency -- who else has bounced back from as much as he has throughout his political career? Ultimately, though, it's a tough road ahead for him. The most conservative members of the party (otherwise known as 'convention delegates') never have been completely convinced of his position on social issues and they still are mad at last fall's bail-out vote.

"If there is a credible alternative at the convention, delegates will go there. And a primary will be tough, especially when Dems likely will have their own primary to tend to (which in 2010, probably will be the primary that independents focus on)."

Among those who have long believed that Coleman would go for guv is Minnesota's political superguru Larry Jacobs of the Center for the Study of Politics and Governance. Look at Coleman's adult life to date, says Jacobs, and he comes across as the classic professional politician. He's run for office pretty much every cycle that he could have done since he first ran (unsuccessfully) for mayor of St. Paul in 1989.

While there are a dozen or more Republicans thinking about the race for guv, Jacobs says that Coleman is the only one that combines:

• Statewide name recognition;
• A proven ability to fund-raise well into the millions of dollars, and to tap into an already existing statewide and national donor base;
• Strength as a candidate for Repub endorsement (he's been endorsed for statewide office three times -- no other candidate can come close to that record; the other biggest-name possible Repub candidate, former Congressman Jim Ramstad, is presumed to be a non-starter for endorsement because of his positions on key social issues);
• Strength as a potential candidate in a primary if it came to that;
• Significant experience at putting together statewide campaigns, and, although he is only one for three in statewide races, he has been competitive every time.

It's an impressive list. One exploratory-mode guv candidate told me that many of the lesser-known exploratory mode-ers would probably stop exploring if Coleman got in because he would suck up so much of the air and money and make the chance of success for a lesser-knowner seem remote.

GOP donors

That possible candidate told me something that might suggest a Coleman run. He has approached certain known Republican contributors to line up a base of support and some of them have told him that they didn't want to commit to anyone in the field until they saw whether Coleman was getting in. This interested me, because if Coleman was actually asking his donors to hold onto their commitments while he mulled, that would be a big clue. But the candidate said no, no one has told him that Norm had asked them to hold back, only that they were doing so. That kinda made sense, too, but didn't shed as much light on the will-he-or-won't-he mystery as I had hoped.

But other unwilling-to-be-identified Republicans felt strongly that Coleman will decide not to run. One party activist who asked Coleman about it directly -- although this was while the recount/trial/appeal was still raging -- said Coleman "told me about a month ago that he wasn't interested in running for governor."

Another factor that people very close to the ground floor of politics find a serious indication that Coleman isn't planning a race in 2010 is that his top staff have taken new jobs that commit them through the 2010 cycle -- and Coleman apparently didn't try to get them to hold back until he decided whether to run.

Among the considerable assets Coleman would bring to a race for governor would be his claim on the loyalty of experienced political professionals who have executed statewide races for him. He could, of course, start fresh with a new crew, but doing so would give up one of his advantages.

So allowing his top political staff to scatter seemed to me to be a fairly big clue, at least when I first heard it. But I suppose those people needed to make a living, as it became clearer and clearer that Coleman would lose the recount/contest/appeal. Still, if Coleman had started thinking/planning a backup run for guv, mightn't he have found a way to keep some of those key staff on call?

Why Coleman might pass

A few other reasons that it makes sense to me that, after mulling his past and his future, Coleman might pass on the governor's race:

• He'll be 61 years old on Election Day 2010.
• This last campaign put a harsh spotlight on his wife and personal finances moreso even than previous campaigns.
• Despite expensive tastes in clothes, travel and mortgages, he is not personally wealthy, but has wealthy friends and admirers who could probably help him acquire some serious money once he no longer has to worry about gift bans and political appearances.
• He's under federal investigation. (I have no idea how serious the allegations are, or how close they are to either blowing up or being dismissed. One of my sources said to me that if Coleman does run for governor, that will mean that there's nothing to the charges, because he'd be crazy to enter a new campaign otherwise. And, since the charges -- that a wealthy friend bought Coleman gifts of clothing in violation of gift bans, or that the same friend steered money to the Coleman family through a sham insurance contract involving Laurie Coleman's work -- are basically about abuse of public office, he would seem to risk much if he remains in public office.)
• One of my Republican sources says that recent internal party polls confirm that Minnesota Democrats dislike Coleman with a special ardor, moreso than ever after the Senate race. This will continue to complicate his chances in a general election.
  
  In fact, Coleman has lost two of his three statewide races. If he keeps running he risks being -- with apologies in advance to the memory of Harold Stassen, one of Minnesota's greatest governors, who became the butt of jokes in his later years because he didn't know when to stop running for office -- Stassenized.
• All of Coleman's statewide races have been astonishing tales. In one, he defeated the Democrat, even though the Democrat was named Humphrey, but lost to a professional wrestler from a party that has never won any other sigificant election. In the second, his opponent died in a tragic plane crash two weeks before Election Day, and Coleman's amazing comeback in the final days was made possible by an over-the-top speech by a grief-stricken mourner. In the third, he ran against a former comedian whose potty-mouthed satirical writings almost destroyed his candidacy. Coleman led in the Election Night count, then gradually lost over seven-plus months of recount/contest/appeal.

All of which should have taught Coleman by now that when people try to tell him how his next race is a can't-miss proposition, he should smile, tiptoe into a padded room, and scream.

Related slideshow: Al Franken Capitol rally

I finally read the Supreme Court ruling all the way through. Here's what I got out of it.

Like the Election Contest Court ruling before it, this is an almost total rejection of every argument Team Coleman had made. Calmly and with no discernible attitude, the Supremes said:

• Nothing that Coleman raised constituted a violation of either the due process or the equal protection clause of the U.S. Constitution;
• Coleman was wrong that Minnesota is a "substantial compliance" state where the acceptance of absentee ballots is concerned, it's a "strict compliance" state so there's no reason to count absentee that were rejected for failure to strictly comply;
• The Three-Judge-Panel was correct in what Coleman spokester-lawyer Ben Ginsberg always called the "Friday the Thirteenth" ruling, namely that Coleman was entitled to have the contest court count only those absentee ballots for which Coleman could prove that every requirement of the absentee ballot law was fulfilled (and Team Coleman put in evidence of very few such ballots);
• the ThreeJudges also got it right on the dispute over allegedly "double-counted" ballots;
• and TheThree, plus the Minnesota State Canvassing Board, both got it right in deciding to go back to the election night tapes to take account of the famed "missing ballots" from one Minneapolis precinct.

Coleman's best argument over recent months has been that different counties applied different standards in accepting or rejecting absentee ballots. Yesterday's ruling didn't say so, but as far as I'm concerned, Team Coleman proved that there was a lack of uniformity across county lines. In a footnote, the Supremes even suggested that, to the degree that this case has highlighted problems in the Minnesota election system, the executive and legislative branches of Minnesota's government should get together and figure out ways to do better on this score.

But as far as throwing out the election result, or changing the count after the vote, or counting thousands more ballots that failed to meet the statutory standards, the Supremes said Coleman was nowhere near meeting his burden of proving that these disparities constituted either due process or equal protection violations.

The ThreeJudges had concluded that these kinds of variations were the kind you would expect to find in any election processing 3 million votes across 87 counties. In a footnote (#15 if you want to read it), the Supremes seemed to agree, writing:

"It is impossible to eliminate all variation in a process administered at thousands of locations around the state by thousands of people, many of them temporary volunteers."

The court seemed to be saying that if these kinds of problems added up to due process or equal protection problems, then no elections could pass constitutional muster.

To find these kind of variations had caused due process or equal protection problems, the court ruled, you would at least have to have evidence that some voters had been misled by public officials to believe that their absentee ballots could be counted without fulfilling all of the requirements.

If a voter had relied on such an assurance, then found that his vote was disqualified because of it, that voter might be said to be disfranchised. But in a "strict compliance" state, a voter who failed to strictly comply with the law could not be said to have been unfairly deprived of his or her franchise.  But, the court noted, Coleman produced no evidence of any voters in that category.

They also noted, and seemed to rely fairly heavily on, the fact that Coleman did not prove, and did not even allege, that these disparities were the creation of election officials trying to commit fraud, nor to intentionally use their discretion to help one party or the other.

In fact, in the section in which they explained why the Minnesota case did not resemble the facts of the Bush v. Gore Florida 2000 disaster, the justices noted that -- unlike Florida where partisan judges were looking at marked ballots and deciding whether or not to count them, and therefore could conceivably had engaged in partisan bias -- the absentee ballot boards that accept and reject absentee ballots can't even see the ballots (they're still in their sealed envelopes), which makes partisan cheating almost impossible.

In short, the Supreme Court ruled that Coleman had not proven any elements that he would need to prove to nullify the result of the election or even to overrule the finding of the lower court.

The court, by the way, issued this as a "per curiam" opinion, which means that no justice is identified as the author and the court is speaking in its capacity as an institution, which may have made it even slightly firmer than a signed ruling that was supported by a unanimous court.

Here's the text of former Sen. Norm Coleman's gracious statement of concession, delivered a few minutes ago to the media outside his home (this, of course, ends any speculation about the Pawlenty or Senate floor scenarios):

"Ours is a government of laws, not men and women. The Supreme Court of Minnesota has spoken and I respect its decision and will abide by the result.  It’s time for Minnesota to come together under the leaders it has chosen and move forward. I join all Minnesotans in congratulating our newest United States Senator -- Al Franken.

"Just a few last words about my legal challenge. Sure, I wanted to win. Not just for myself but for my wonderful supporters and the important values I have always fought for. I also thought it was important to stand up for enfranchising thousands of Minnesotans whose votes weren’t counted like the others were. After all, issues and politicians come and go, but voting is fundamental.

"It is the essence of democracy so I knew we needed to do everything we could to get it right. 

"I am forever grateful and humbled by the people of Minnesota who have given me the honor to represent them - and even more grateful for their wisdom, courage, patience and understanding over these past several months.

"The path that I take in the future is not nearly as important today as the path that we must now -- all travel on together -- to strengthen our state and our nation.

"I have never believed that my service is irreplaceable. We have reached the point where further litigation damages the unity of our state, which is also fundamental. In these tough times, we all need to focus on the future. And the future today is we have a new United States Senator.

"I congratulate Al Franken and his victory in this election. He now enjoys the advantage that our Congressional Delegation has over the other 525 people on Capitol Hill: he represents Minnesota. 

"I know the great ideas, the amazing work ethic and the historic ability to come together to get things done in this state will help him greatly, as it has me.

"Speaking of which, I think we all should take a moment to thank Amy Klobuchar and her staff. They have done a great job of carrying the burden of two Senators these last six months. She is an extraordinary public servant.

"I don’t reach this point with any big regrets. I ran the campaign I wanted. I conducted the legal challenge I wanted. And I have always believed you do the best you can and leave the results up to a higher authority. I’m at peace with that. As to my future plans, that’s a subject for another day.

"We live in a great country and a great state. We can all have confidence that by some path we don’t yet know -- one which we can all come together to lay out -- we will arrive at the better future we all seek.

"Thank you and may God bless Minnesota and America."