We, the denizens of Franken-Coleman Recountland, are back in a holding pattern, although this one could be over any minute.

Any day now -- personally I'm thinking it will be tomorrow, but don't rule out later today -- TheThreeJudges will issue an order ending the current chapter known as the Contest Trial. We, the recount-obsessed, all seem to think we know what the order will say. I agree with the conventional wisdom on that one, that the ruling will be favorable to Al Franken. This will be an important step, and the odds continue to favor the eventual seating of Franken in the Senate as they have ever since he took the lead during the State Canvassing Board phase.

Those who are impatient and anxious for that day may be frustrated to contemplate the number of potential steps still remaining and the number of opportunities for delay or a sudden reversal of fortune. They are all longshots, but numerous.

One thing you really should know, but it's hard to learn because so much of the commentary seems to want to lead us to another conclusion: The likeliest outcome -- no matter whether Team Coleman takes their case to the U.S. Supreme Court and/or tries to get a fresh start in federal district court -- is that Franken will be seated in the Senate in roughly May or June.

Yes, it's theoretically possible (although unlikely) that the argument will live on for many months (as you may know, Sen. John Cornyn, R-Texas, has said "years"). But even if the case lives on, Franken will, in all likelihood, already be seated in the Senate. Too many pieces, including this one from today's Strib front page, suggest that Minnesota will remain a one-senator state as long as Coleman is appealing his case. That is unlikely, and if you read the Strib piece carefully, the same experts who say it is possible, say it is unlikely.

I just spoke to one of those election law experts, Guy-Uriel Charles, who said that the "significantly greater likelihood" is that Franken will get an election certificate soon after the Minnesota Supreme Court rules.

Since I can't seem to stop thinking about them, here's part one of a guided tour of the path, potential twists and slowdowns going forward.

Step 1. Three-judge panel rules.

Very soon. They seem likely to declare that with all ballots counted that should be counted, Franken has won by 312 votes and is therefore entitled to a certificate of election. TheThree will also make a final ruling on two issues that have been around forever: the "missing" ballots from Minneapolis, and the "double-counted" duplicate ballots. Based on what the judges have said and written so far, and especially the fact that these issues were the subject of previous rulings of the State Canvassing Board, it seems unlikely that Coleman will benefit much from TheThree's decision on those issues. Even if he did, there aren't enough votes at stake to put him into the lead.

Coleman's lawyers have all-but-conceded that they will lose this important round. It may be important, in assessing the future course of things, whether their order is unanimous. A 2-1 ruling with a strongly worded dissent will be a small-to-medium-sized blow to Franken. Thus far, everything TheThree has done has been unanimous. A unanimous ruling will have extra weight going forward and, since TheThree have a tinge of tripartisanship (one was appointed by DFL Gov. Rudy Perpich, one by Repub Gov. Carlson and one by Jesse Ventura, although they were appointed to the special contest panel by Supreme Court Justice Alan Page, widely presumed to be a DFLer of some sort).

Thus far, the entire process from Election Day to today has been impressively civil, transparent, orderly and non-partisan, even though it has involved elected and appointed officials of various partisan backgrounds. Minnesotans should be proud of that fact and the rest of the country should be impressed by it, considering what we have seen in other states under similar circumstances.

It may also be important what TheThree say in their order about Team Coleman's main arguments regarding "equal protection"/lack of uniformity in the treatment of absentee ballots by different counties and at different stages of the recount process. These issues -- especially equal protection because it arises from the federal Constitution -- are the only chance that Coleman will have, down the road if he decides to go down the road, in getting either the U.S. Supreme Court or a federal district court to take the case.

If TheThree make clear that they have seriously and respectfully considered the equal protection aspects of the case, and have developed a solid reason for not adopting any of the three ideas that Team Coleman has suggested -- 1. count a bunch more of the rejected absentee ballots, 2. adopt a statistical hypothesis and adjust the existing county precinct-by-precinct, or 3. throw out the election results entirely -- it may well influence the decisions of federal judges as to whether they have any reason to take the case.

Step 2: Notice of appeal to the Minnesota Supremes.

Democrats have been trying to advise, hector or pressure Coleman against doing this. If he decides not to, the case will be over and Franken will be seated in the Senate within days. But that's not gonna happen. Both Coleman and his lawyers have said for weeks that they believe their best shot will be on appeal. (That's certainly true, if the conventional wisdom is correct about their chances of prevailing with TheThree).

Bet the farm that -- notwithstanding the earnest concern expressed by many Dems about the damage he will do to his future political prospects if he persists -- Coleman files the notice of appeal. State law requires that he do so within 10 days of the final ruling of the contest panel.

It will be of modest interest to note how many of the 10 days Team Coleman takes to file. He has said on the radio that he will not need 10 days. It is just a notice, which can be filled out quickly and easily, not the appeal brief.

Many Dems have stated, as if it were a proven fact, that Coleman knows he cannot win and is continuing the case solely and despicably to delay the inevitable seating of Franken. I am aware of no evidence to support this fairly serious allegation of abuse of process. Coleman did not take the maximum 10 days after the Canvassing Board's final action to file his notice of contest -- in fact he filed it on Day One. His trial team could easily have dragged the contest trial out longer by putting more invididual voters on the stand, and, in fact, Team C seems to have blundered by not doing so. Certainly, it was not a decision consistent with a strategy of maximum delay. If Coleman waits until day 10 to file his notice, I will consider that the first dilatory tactic. If he files in the first days of the window, will his critics concede that he has passed up a chance to delay the case further?

There is considerable difference between Coleman knowing that his chances of returning to the Senate are slim and shrinking -- which Coleman does know, notwithstanding all the brave public expressions of confidence by himself and his lawyers -- versus knowing that they are nil, which they are not.

Coleman is absolutely entitled legally to appeal the contest court's ruling to the State Supremes and has at least some chance of breaking through with some portion of his argument.
 
If the vote count was reversed and Franken had a halfway credible legal argument to take to a higher court, would those Franken supporters, who are insisting that Coleman move on and get a life, be giving the same advice to their own preferred candidate?

A parting thought: The argument that Coleman should drop the appeal in order to keep alive his political prospects has a couple of unstated assumptions:

• that Coleman wants to be governor (what else could he aspire to after being a senator?),
• that there will be an opening for a new Republican guv candidate in 2010,
• and that the political damage Coleman has already taken during the election and recount leaves him in a good position in case Gov. Pawlenty decides not to seek a third term.

I'm not sure of any of those assumptions. It may be that the small flicker remaining in Coleman's chance of hanging onto his Senate seat is the brightest hope he has for a political future. And one last contrarian thought. If Pawlenty doesn't run and Coleman wants to be governor, he will first have to get the Repub nomination. The chance of holding that Senate seat is much more important to the national Repubs than Coleman's political future, and loyalists will not give him any points if they feel he dropped out of the recount while there was still any hope, however slight. If Coleman does hope for a political future, there is significant tension between doing what the party base wants and marshalling his appeal to Minnesota moderates and swing voters whose support he would need in a guv run.

U of M political scientist Larry Jacobs, the uber-analyst of Minnesota political matters, has been giving the opposite analysis, so I ran my thinking by him and, sure enough, he disagrees with me. He notes that:

• Coleman's life story suggests he is a "career politician," and nothing recent suggests that he is ready to be done with that career.
• Evidence suggests it is more likely than not that Pawlenty will forego a third term to concentrate on his presidential aspirations, although nothing is definite on that front.
• If Coleman does run for governor, he will start out as the "likely frontrunner" for the Repub endorsement nomination, the only likely Repub candidate other than Jim Ramstad with statewide name ID.
• The level of annoyance that Minnesotans feel with Coleman for taking the recount and contest this far has not fatally damaged his brand. If he goes further, especially if he goes further than the MN Supreme Court level, the sore-loser image will grow quickly.

Step 3: The MN Supremes take the case.

This is automatic. The federal courts mentioned above can and quite likely will decline to give Coleman's case a hearing. But state law guarantees the loser of an election contest gets a state Supreme Court review. Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson are widely expected to recuse themselves (because they sat on the Canvassing Board, whose work will be part of the record the high court will review). But this is entirely up to them and won't be definite until they announce that they have recused. If they recuse, five justices will hear the case. It has been suggested that another member of the court, Justice Christopher Dietzen, might recuse because in his pre-judge life he gave two $250 contributions to Norm Coleman's campaigns. Again, it's entirely up to Dietzen.

There have been several media references to a deadline for the filing of briefs, 15 days after the notice of appeal is filed. This is a misreading of language in subd. 4 of the Minnesota statute on appeals from election contest courts. The Supremes will set the briefing schedule when they get the case. For those keeping track of the passage of time, this will come in two steps. Since Coleman is the appellant, he will file his brief first. Then Franken will be given additional time for a rebuttal.

After the briefs, there will almost surely be oral arguments, which should be riveting to us, the recount-obsessed. That schedule also remains to be set. Surely both sides are already hard at work on their appellate briefs.

State law that calls for the Supremes to drop what they are doing and handle an election contest appeal quickly. Such an appeal "takes precedence over all other matters before the Supreme Court."

The Coleman brief will be interesting. Ben Ginsberg has laid out Team Coleman's equal protection argument often to the media in the hallway outside the contest courtroom, the argument has been alluded to in various filings and Joe Friedberg summarized it well during his closing argument in the trial. But the Coleman legal team has not really presented that argument fully and clearly in legalese. This will be the biggest and possibly the best shot Coleman has left.

I've written a couple of times that Coleman's lack of uniformity contention is not a terrible argument. During the contest trial, Coleman demonstrated that different standards for the acceptability of absentee ballots were applied in different Minnesota counties. Many (no one knows how many) absentee ballots were counted in many counties that were not judged against the high standard that the contest panel applied. Many absentee ballots (no one knows how many, nor whom they were for) would not have met that high standard, but were counted. While I still believe Minnesota has one of the best election systems, it is not perfect. And when the margin is 312 votes out of 2.9 million cast, any error may have affected the outcome.

To me, as a non-lawyer, the equal protection version of the argument (some voters received different treatment than others) is not as compelling as the argument that Minnesotans cannot be totally sure who would have won the election if all ballots had been judged against the proper legal standard.

I'm definitely not saying that that argument should prevail, nor that it will. But that argument is not nothing. It merits serious discussion and consideration.

There are many excellent counterarguments on behalf of Franken. Compared to Florida in 2000, Minnesota has very clear statewide standards:

• Variation in the application of those standards across 87 counties and thousands of precincts is part of every election and probably cannot be eliminated.
• There has been no showing of fraud or any malicious intent to disregard standards.
• The ballots that should not have been counted cannot be uncounted. Counting more ballots that should not have been counted will not make the count more perfect but arguably less so. Coleman has not shown that counting more ballots will change the outcome.
• There is no practical way to perfect the count and, in an election this close, perfect confidence in the final result may be impossible.
• Throwing out the election would be unprecedented in Minnesota, has no basis in state law, would be costly in many ways and would drive substantial numbers of Minnesotans insane.

All I mean to say is this: We think we know (and the order this week will presumably confirm) that the ThreeJudges didn't buy the Coleman argument. Those who have decided that Coleman has no chance have concluded that every other court that hears the argument will have the same reaction. But there is no basis of which I am aware for predicting how the MN Supremes will feel about this argument.

There appears to be zero possibility, by the way, that the court will rule Coleman the winner of the election. There is no basis to do so. Ginsberg said recently his optimal outcome would be that the high court will remand the case back to the contest panel with orders that it count some more ballots, the more the better, from Coleman's viewpoint.

Even if more ballots are counted, the odds favor the candidate who starts out the re-re-recount with a 312-vote lead. But a remand for more counting will certainly add to the timeline for getting to an election certificate.

If, as seems most likely, the Supreme Court affirms the contest court and rules that Franken has received the most legally cast ballots, it will be of some importance for future developments whether the ruling is unanimous. If it is, the pressure on Coleman to go no further will mount. And, for those interested in the speed of the process, it will be important whether the Supremes include a specific order to Gov. Pawlenty that he create and sign a certificate of election.

In the interest of not trying your patience on a Monday morning, I will hold until tomorrow's Part Two of this guided tour a discussion of Step Four: What might Pawlenty do if the MN Supremes rule for Franken? In the next installment, I will also try to back up my statement at the top that -- if all goes according to the most likely outcomes -- Franken will be seated by summer even if Coleman takes his legal arguments further.

A small but heartfelt p.s. In much of my coverage including this post, I have adopted the slightly playful term TheThreeJudges to refer to the contest panel. They are not, of course, indistinguishable but three highly-regarded jurists each in his or her own right and I have nothing but respect for the obvious effort they have made in the case to date and the sacrifice they have made to be away from home, families and more normal duties. They are Stearns Country District Judge Elizabeth Hayden, Hennepin County District Judge Denise Reilly, and Pennington County District Judge Kurt Marben.