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Judges’ ‘three votes’ give Al Franken convincing win in Senate recount trial

When this 2008 U.S. Senate race is finally over, when all the appeals are exhausted, when its history is written – based on what we know today -- it will be said that Al Franken won the election and the seat of the junior senator from Minnesota by 312 votes.

But that will not be exactly correct.

After Monday’s long-awaited final legal ruling (PDF), add three more votes to Franken’s tally: those of Judges Elizabeth Hayden, Kurt Marben and Denise Reilly.

Technically, the three-judge panel that oversaw a seven-week-long trial that generated 19,181 pages of legal filings “voted” against Norm Coleman in their unanimous 56-page opinion, with another 12 pages of exhibits.

It was Coleman’s case to prove, and now he’ll get another chance when he appeals today’s ruling to the Minnesota Supreme Court within 10 days.

The judges, with definitive and deliberate language, said Coleman, who has been a U.S. senator for six years, didn’t come close to proving that, among other things: thousands of Minnesotans who cast absentee ballots were disenfranchised, that some ballots were counted twice or that the “equal protection” rights of Minnesota voters were violated.

Unanimous rulings all go against Coleman
Indeed, the judges listed 157 different “findings of fact,” and nary a one seemed to be in Coleman’s favor.

Hayden of St. Cloud, Marben of Thief River Falls and Reilly of Minneapolis  – as they did with every ruling in this case which began in late January – wrote as one, as fact No. 28 clearly said: “All of the Orders entered by this Court throughout these proceedings have been unanimous.”

And Monday’s ruling flew in the face of just about everything Coleman’s lawyers sought to prove.

Let us count the ways:

• Coleman’s lawyers bashed the state’s voter registration system (SVRS), overseen by the secretary of state’s office, for being inaccurate and not up-to-date. 
Not so, said the judges, who, in citing testimony, called the SVRS “accurate and reliable” and trustworthy.

• Coleman’s lawyers tried to show that thousands of voters were “disenfranchised” by the actions of local elections officials.

The judges: “The Court has received no evidence or testimony to support a finding of wholesale disenfranchisement of Minnesota’s absentee voters …”

• Coleman’s lawyers alleged that local election officials opened and counted ballots that should not have been counted on Election Day. The judges said there were no specific ballots cited and, besides, there was no evidence “these votes would have changed the outcome of the election and that Coleman would have received the highest number of votes.”

• Coleman’s lawyers tried to prove that some ballots were counted twice.

The panel: “The Court did not hear testimony from any precinct election judge that they duplicated damaged ballots and failed to mark the duplicates or the originals.”

• Coleman’s lawyers questioned the validity of 132 missing Minneapolis ballots. During the trial, Coleman attorney Joe Friedberg acknowledged the ballots once existed and then went missing. Until today, the judges hadn’t ruled on this.
In Monday’s ruling, the judges declared the 132 ballots “were cast and properly counted on Election Day.” As the State Canvassing Board ruled before them, those votes were included in the final count, giving Franken a net of 46 votes over Coleman.

• Coleman’s major claim – and the one that he will press in his appeal to the Minnesota Supreme Court – was summarily shot down by the judges. That involves the matter of “equal protection.”

They wrote; “Errors or irregularities identified by [Coleman] in the general election do not violate the mandates of equal protection.”

Later, in their full opinion, the judges acknowledged some votes were handled differently in different counties and precincts, but, “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.”

Finally on this matter, the judges went right at Coleman’s assertion that some illegally cast ballots should be opened and counted now because some illegally cast ballots were opened and counted on Election Day.

“Following Contestants’ argument to its conclusion, the Court would be compelled to conclude that if one county mistakenly allowed felons to vote, then all counties would have to count the votes of felons.”

The judges called that “an absurd result.”

Coleman side’s reaction short, scathing
Reaction by Coleman’s side was short and scathing. An appeal to the Minnesota Supreme Court, sometime in the next 10 days, is a certainty, said Coleman legal spokesman Ben Ginsberg.

"More than 4,400 Minnesotans remain wrongly disenfranchised by this court's order,” Ginsberg said in a statement. “The court's ruling tonight is consistent with how they've ruled throughout this case but inconsistent with the Minnesota tradition of enfranchising voters.  This order ignores the reality of what happened in the counties and cities on Election Day in terms of counting the votes.  By its own terms, the court has included votes it has found to be 'illegal' in the contest to remain included in the final counts from Election Day, and equal protection and due process concerns have been ignored.  For these reasons, we must appeal to the Minnesota Supreme Court so that no voter is left behind."

From Washington, the Democratic Senatorial Campaign Committee’s chairman, Sen. Robert Menendez of New Jersey said: "The people of Minnesota have many reasons to be proud tonight, not the least of which is knowing they have one of the best election systems in the entire country. A thorough election contest upheld the result of a meticulous recount. Al Franken won the election, Al Franken won the recount, Al Franken won the contest, and now Al Franken should be allowed to get to work for the people of Minnesota."

Rick Hasen, a leading election law expert at Loyola Law School in Los Angeles, praised the judges’ reasoning. Meanwhile, Ohio State law professor Ned Foley also weighed in on the equal protection issue, a bit less firmly than Hasen.

Franken reacts
The decision was emailed to members of the news media by court clerk Christopher Channing at exactly 5:59:59 Monday, one second before the clock struck 6 p.m. Exactly two hours later, Franken and his wife, Franni, practically skipped out of the door of their Elliott Park townhome, smiling and relaxed, to meet the media assembled on 10th Street.

The last time the two of them stood before the microphones and cameras to declare victory was 14 Mondays ago, they were in overcoats, and puffs of frost escaped from Franken’s mouth with each word.

Monday night, with a spring sun setting to his left, and the Twins playing baseball eight blocks away to his right, Franken declared victory again, talked of rebuilding the economy and repairing the health care system.

“We didn’t fight hard simply because we wanted to win,” Franken said of the campaign and the post-election legal tussles. “We fought hard because every Minnesotan knows someone who’s losing a job or a home, someone who’s struggling to pay for tuition or prescription drugs … It’s like Paul Wellstone always said: Politics isn’t about winning. It’s about the improvement of people’s lives … It’s a fight we must win by setting aside partisan gamesmanship and working together,” he said, sounding like the progressive senator he wants to be. “It’s long past time we got to work.”

For his part, Coleman told Channel 5’s Tom Hauser Monday night about the details of his appeal.

He spurned questions about any effects a protracted appeal could have on his political future or any suggestion he might run for governor next year should he lose this Senate race.

“I’m really not looking ahead to 2010,” Coleman told Hauser.

When Franken was asked if he’d urge Coleman to drop his appeal, Franken chuckled and said, “I’m sure that he’s made his mind up. I’m a pretty persuasive guy, but I don’t know if I could win that one with him.”

As for whether the Democrats in the Senate should seat Franken now, even before a Minnesota Supreme Court ruling, Franken said, “That’s something I really have no control over … I really think this is something for the state of Minnesota … I think we’re gonna settle it right here.”

Senate Majority Leader Harry Reid, implying he won't jump the gun in trying to seat Franken, said in a statement: "Norm Coleman is entitled to appeal to the Minnesota Supreme Court. If he does so, we look forward to a prompt decision from that court so that Gov. Pawlenty can issue an election certificate and we can finally bring an end to an episode that has left the people of Minnesota without full representation for too long and has cost taxpayers too much money."

In his Channel 5 interview, a still combative Coleman told Hauser:  “My fight ends when the ballots are counted.”

But the work of Hayden, Marben and Reilly is over and, in their view, all the appropriate ballots have been counted, and “The citizens of Minnesota should be proud of their election system.”

Still, we give the judges low marks for, as we say in the news biz, burying the lead.

It took them until Page 21 and finding Nos. 126, 127 and 128 to simply state: “Accordingly, Coleman received a total of 1,212,317 votes and Franken received a total of 1,212,629 votes in the race for United States Senator in the November 4, 2008 general election … Franken received the highest number of votes legally cast … Franken is entitled to receive the certificate of election.”

Their three votes backing those simple words are the most important votes today, and, when all is said and done, perhaps, for all of history.

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

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Comments (9)

The Minnesota RNC has no shame. Coleman is the greatest embarrassment in the entire history of the state of Minnesota. The RNC must realize what is self evident to the entire world. Coleman's out of control and in a mental state of deep denile. He clearly lost, in every respect, to the opponent Al Franken. Now he's a public spectacle and embarrassment. The only legal issue remaining is wether Coleman can be voluntarily committed for treatment of his denile or will he have to be involuntarily committed to be treated for his acute denile. Why let someone that belongs in a looney bin deprive us statesmen of Senatorial representation. Judges, have mercy on this very sick man and get him from embarrassing public scrutiney. Put him in an asylum where he belongs.


From a Norm Coleman news release on Nov. 18, 2008:
“In a last minute attempt to stop the recount, directly contradicting what they said yesterday, the Franken campaign has now clearly shown they will do anything and everything they can to turn this Minnesota recount into another Florida. They insultingly charge the majority of Minnesota county boards with failing to comply with state law, and denigrate the legal ruling of the Minnesota Attorney General’s Office. The Franken Campaign’s scorched earth legal strategy is now fully in view for all Minnesotans. Win at all costs, regardless of who or what laws get in their way. Minnesotans expect a legal and transparent recount, and it is time for the Franken Campaign’s legal team to give way to the thousands of volunteers and dedicated election officials who are to begin the recount tomorrow across our state.” (

In 2004, Norm would be called a Flip-Flopper.

The key point is that Coleman didn't lose a close decision, but lost about as thoroughly as possible. When Coleman won almost no findings of fact when there were so many findings, will conservatives finally realize how disconnected from reality they've become? Or will we just hear more screams of "Franken's a tax cheat!"?

Assuming the appeal is denied, is there any information on the cost of Franken's legal team that will be paid for by the Coleman camp?
That would be a bitter pill for Republican donors.

The corollary question is what happens to the legal funds Franken would presumably have returned in that scenario? Do they go to his campaign or to a separate legal fund?

I'm happy to see that the three-judge panel believes, as I do, that we must not make the perfect the enemy of the good. This happened most disastrously in Florida in the year 2000. Because the recount threatened to be sloppy - though it also threatened to count more votes and might easily have been fairer and more accurate than the election-night count - it was invalidated by the Supreme Court in its lamentable Bush v. Gore decision. As a result, the ballot count that was arguably the least fair and the least accurate, namely the election-night count, prevailed. And all in the name of equal protection!

Thank goodness we have judges in Minnesota who look at things more realistically and pragmatically. They realize that our law is not perfect and our election officials are not perfect, so that it will always be possible to question particular decisions made by individual ballot counters, whose judgments will vary. But that doesn't mean the recount is unfair. Sure, there may be ways to make the decisions of ballot counters more uniform - in the future, by means of new laws. But in the recount, we need to follow the old law, with all its imperfections.

Norm Coleman certainly has every right to appeal to the State Supreme Court and he should do so.

I would expect the same from Franken if the roles were reversed.

As I went through the 68 pages of opinion and exhibits. I was not surprised at how the three judges supported their finding with previous rulings and state law. Their findings appear to be quite solid.

Having said that, I would like to see how the State Supreme Court views these findings and conclusions. Whether they expand on some of the issues and or how they view the "equal protection" argument coming from the Coleman side.

It's sad to see a former senator like Norm Coleman throw himself on the sacrificial altar to stall democracy while Nero (or Newt?) fiddles and Coleman's adopted party burns a slow death while others still attempt to rebuild the GOP in the image of Michael Steele (or Rush Limbaugh?).

What can the GOP ever do to repay Mr. Coleman and his family for the sacrifice of their honor?

Paying the legal bills for Mr. Coleman and the portion that Channel 5 says they pay for Mr. Franken also, since Mr. Coleman is obligated after losing the legal case, seems like such a small token.

Maybe Mr. Coleman can get a book deal and write about his experiences in losing the longest U.S. Senate campaign in Minnesota's history. But would anyone buy the 'Story of the Sacrificial Senator?' Stories of loss and sacrifice are not what most of us find uplifting in these challenging economic times when our book, movie, and TV choices lean towards escape from reality.

This will go to the US Supreme Court.
Hey, it worked before.

Jay Weiner, you should be ashamed to use such a cutsey line. This suggests that the ECC judges
simply voted, as in an election -- that implies that they are "activists" and not real judges. Shame on you.