Key – potentially close – Supreme Court vote could come Thursday in Franken-Coleman recount battle

“Counsel … this is not Florida,” Minnesota Supreme Court Justice Paul Anderson barked.

He glared, too, at Norm Coleman’s lawyer Roger Magnuson.

It wasn’t exactly a smooth takeoff for Magnuson, one of Minnesota’s best and the man who represented the Florida Senate in the historic Bush v. Gore case of 2000 … you know, the one that changed American history for the past eight years.

Magnuson, of the Dorsey firm, tried to use some typical weather humor contrasting Minnesota and the Sunshine State along with sobering history to begin his argument to the state’s highest court this afternoon.

He tried to kick off his presentation to the five justices by suggesting that if they allowed rejected absentee ballots to be included in the excruciatingly protracted Coleman-Franken recount, they would be traipsing into “a legal thicket.”

Opening the door?
His point was that by opening the door to including some incorrectly rejected ballots into the recount, the State Canvassing Board – including the chief justice of this same Supreme Court –had “accepted an invitation, we believe, to Florida 2008.”

And, oh, the mere mention of that outlaw state raised Anderson’s hackles. His Honor wouldn’t stand for such ominous talk.

“I’m just not terribly receptive to you telling us that we’re going to Florida and we’re comparing to that,” the justice said.

But here’s what that exchange revealed: As the post-election process moved into its sixth week, Minnesota’s elections officials and top jurists – with the entire nation watching with curiosity -- continued to fight to make sure we don’t become another Florida.

By watching the tedium of the State Canvassing Board and the care its members are using to evaluate challenged ballots, no one could honestly accuse Minnesota of being Florida.
And listening to the entire Supreme Court session, one can see the real concern of the justices about doing the right and legal thing.

 Indeed, it was an hour’s worth of lawyering, but this hearing will probably determine Minnesota’s senator for the next six years, so it might be more worthwhile than watching another “Matlock” rerun.

Key ruling could come Thursday
Still, the competing arguments are so starkly different that Minnesota’s electoral process today and into the future hangs on the outcome of the Supreme Court’s ruling, which could come as early as Thursday morning.

For, in the end, Magnuson took the position in court that the Coleman forces have taken since the dawning of the recount: If  a ballot wasn’t counted Nov. 4, it shouldn’t be counted now.

In a nutshell, Magnuson said: “A ballot that has never been counted on November 4 has not been cast.”

And if there’s a dispute over an absentee ballot, that should be resolved by the courts AFTER the recount is concluded.

That argument was countered minutes later by Franken lawyer William Pentelovich, of Minneapolis’ Maslon firm, with this: “The universe of ballots to be counted is the universe of ballots that are cast.”

And those previously rejected ballots at the local precincts that were not counted because of administrative mistakes should be counted now because they were cast and have yet to be counted.

The key is this: However this absentee ballot issue turns, this election will move into the courts. And if the courts keep pushing the date of certification back, we could end up in the nether zone of not having a senator by Jan. 6. Maybe even Gov. Tim Pawlenty would get a chance to name Norm Coleman’s successor. (Good chance it would be Sen. Coleman himself.) Or the U.S. Senate would weigh in.

Amid all this, the five justices asked pointed questions, mostly on the ins and outs of the prevailing statutes, on the meaning of “validly cast,” on past cases, on Bush v. Gore and on exactly how these uncounted votes in this new pile should be handled by the 87 county election officials.
Justice Lorie Skjerven Gildea, a Pawlenty appointee, seemed to be leaning toward siding with Magnuson, citing a pre-recount guide written by Mark Ritchie, the Democratic secretary of state, suggesting rejected absentee ballots wouldn’t be part of a recount.

But Anderson, appointed by Arne Carlson in 1994, was clearly leaning toward including the ballots in the recount, telling Magnuson: “What concerns me is what you’re asking us to do … The court is to step in and say, ‘Stop, don’t do this.’ ”

Anderson didn’t seem open at all to not counting votes that were rejected for no good reasons.

Justices Alan Page, very circumspect, and Helen Meyer, with a few thoughtful questions, also seemed to be leaning to Franken’s way of thinking, but, who knows what lurks in the minds of such legal minds up on that lofty bench?

An uneducated guess
A totally uneducated guess: The Minnesota Supreme Court will rule 3-2 Thursday that the previously rejected absentee ballots should be included in this recount, and they will issue an order detailing a specific procedure to do that.

But I could be wrong. Completely wrong.

By the way, Chief Justice Eric Magnuson and H. Barry Anderson, another Supreme Court member, didn’t hear the case because they are on the very Canvassing Board that Coleman is suing. Indeed, they were evaluating challenges as their colleagues heard the case a short walk away.

Speaking of which, the Canvassing Board finished up with all of Al Franken’s 420 or so challenges today. The secretary of state’s office didn’t post an official tally on how Franken did, but Franken recount lawyer Marc Elias said he was pleased with how the challenges were going and charged that the Coleman campaign was in “panic” because of a series of independent analyses showing Franken slowly gaining ground on the challenges. Not to mention the potential inclusion of the rejected absentee ballots.

Coleman lawyer Tony Trimble, however, chuckled at the panic notion. His candidate’s 1,000 challenges of Franken votes will be on the board’s agenda Thursday and Friday.

Trimble appeared calm and relaxed, almost as if he were thinking about those glorious post-recount days when he could be on a beach. In Florida?

Jay Weiner can be reached at jweiner [at] minnpost [dot] com.