It'll be a few days before Norm Coleman files his appeal to the Minnesota Supreme Court, probably not before next week.

And the three-judge election contest judges were "very defensive" about Minnesota's electoral system and spent too much time patting themselves and the state on the back when they should have been more concerned about enfranchising as many as 4,400 more voters.

So said Ben Ginsberg, Coleman's legal spokesman, in a conference call with reporters this morning.

It was the Coleman side's first full reaction to the sweeping verdict handed down Monday night that concluded with the judges declaring Al Franken is entitled to the election certificate to be Minnesota's next U.S. Senator.

Ginsberg reiterated the major themes of the upcoming appeal:
    
    • The three judges allowed "illegal ballots" in the count and, by not following state election law uniformly, election officials statewide violated the “equal protection” rights of thousands of voters;
    • The panel, in its verdict, allowed "due process" violations because of the way "rules" were changed to count ballots between Election Day and during the trial.


On the key issue of not counting more absentee ballots that Coleman believes qualify to be counted, Ginsberg criticized Judges Elizabeth Hayden, Kurt Marben and Denise Reilly.

"We feel that they have misunderstood a number of the issues, as well as what's at stake in this case," Ginsberg said.

As it attempted to prove during the seven-week-long trial, the Coleman side believes that because similar ballots were opened (or not opened) -- and counted  (or not counted) -- differently in many counties that was a violation of the federal and state equal protection laws.

The judges wrote in their opinion Monday that while some votes were handled differently in different counties and precincts, “Equal protection … cannot be interpreted as raising every error in an election to the level of a constitutional violation … Equal protection does not guarantee a perfect election … Equal protection does not demand rigid sameness.”

Besides, the judges said, any issues of un-counted votes would not have changed the outcome of the election.

“We were puzzled by that language,” Ginsberg said, noting the margin of 312 that Franken holds is small enough to be overturned, if and when more ballots are counted.

Mostly, Ginsberg highlighted a position he began to assert late in the trial when it appeared Coleman was bound to lose. Ginsberg’s view: The three judges were more intent on defending Minnesota’s electoral system than in isolating the system’s flaws and addressing them in this case.

He said today: "If you read this opinion, the court was very defensive of the Minnesota system. The purpose of the contest is to be protective of the rights of voters …In spending so much time kind of patting themselves on the back about the Minnesota system the court, I think, kind of missed what the real picture is.”

He said a statewide standard didn’t, in practical terms, exist because local election officials view the pre-Election Day training by the secretary of state’s training like a “game of telephone … Everybody hears what’s said and applies it a little bit differently. That difference in applying … is what creates the constitutional and practical infirmity.”

Of the flaws in Minnesota's and the nation's electoral system, Ginsberg said: “This really is a clarion call that the system of election administration in this country is broken. And there is a great tendency to try and keep the genie in the bottle in these cases … To sweep it all under the rug and pretend it doesn’t matter … In this case, in this election, where it was this close, it absolutely does matter … You cannot know who won this election without coming to grips with the equal protection issue … This problem is never going to get fixed in this country if places like Minnesota, which are the best in the country, sweep it under the rug instead of dealing with what really is a serious problem.”

As for the timing of the Coleman’s notice of appeal, "I would be surprised if it's before next week," Ginsberg said. "We'll take time to make sure we review [the panel’s opinion.]"

Coleman had said earlier his legal team wouldn't use up the full 10 days the statute allows to file an appeal. But, of course, the more time Coleman takes, the longer Franken’s wait to be sworn in … assuming the Minnesota Supreme Court affirms the three-judge panel’s ruling.

No matter what the legal issues, the number is clear: After two months of a trial and the introduction of thousands of potential ballots for consideration, Franken is ahead by 312 votes, all deemed legal by the three-judge panel.