We had all been here before, in Courtroom 300, with Minnesota’s second U.S. Senate seat on the line. We had heard all the themes, some esoteric, some legal mumbo-jumbo, some crystal clear.
Equal protection. Due process. Do we use “strict compliance” of the state election statute or “substantial compliance” when evaluating the legality of a vote? Can we uncount votes that might have been cast “illegally”? Were the election rules changed in the middle of the election game? Every ballot tells a story, don’t it?
Such familiar notions weaved their way through today’s Supreme Court arguments by lawyers for Norm Coleman and Al Franken in a scheduled hour-long hearing that — of course, in keeping with the pace of this electoral marathon — went minutes longer.
But tricky legal theories didn’t dominate in the packed courtroom on a sunny June morning, seven months after 2.7 million Minnesotans went to the polls — and another 292,000 voted by absentee ballot — to pick a senator … and are still waiting for him to take his office.
No, you didn’t need a background in civil procedure to understand the simple concept that emerged as most important as the five Supreme Court justices aggressively poked Coleman lawyer Joe Friedberg and, less so, Franken lawyer Marc Elias.
These were the basic questions that any citizen can comprehend: Did Norm Coleman prove his case during a painstaking seven-week-long trial in this very same courtroom last February and March? Did Coleman’s legal team — with hard evidence — show first the trial court and now the Supreme Court that enough ballots that should have been counted weren’t and that too many ballots that shouldn’t have been counted were? Did Coleman lay the factual foundation to elevate his claims of widespread inconsistencies in absentee ballot evaluation to the level of federal constitutional issues?
Finally, did Coleman offer enough evidence at trial — and now — to suggest that he could overcome Franken’s 312-vote post-trial lead even if more votes were counted?
Mark down the Minnesota Supreme Court as skeptical. Like real skeptical, if one can infer from their aggressive questioning of Friedberg and their relative collegiality with Elias.
The Supreme Court justices — especially Justice Christopher Dietzen — peppered Friedberg on this matter of evidence and on the quality of the “offers of proof” that Coleman’s side presented during the election contest trial. Repeatedly. And Dietzen is considered one of the more conservative and Republican-leaning members of the court.
Dietzen to Friedberg at one point: “We have a finding [from the three-judge election contest panel] that there is no evidence of fraud or misconduct … It seems to me that you have to show that that finding was clearly erroneous, and I’m wondering what that evidence is.”
Dietzen was joined in his skepticism by Justice Paul Anderson, who questioned, too, the Coleman legal team’s “offers of proof” during the trial. Offers of proof were made to the three-judge panel during the trial once Coleman’s side saw it was losing the case. They produced these petitions with potential evidence purposely for the appeals process.
But when it came to the specifics of Coleman’s claims that certain sorts of ballots were rejected in a systematic way statewide, the justices didn’t seem convinced.
Indeed, one courtroom observer, Hamline University law professor and election law expert David Schultz, called Dietzen’s comments about Coleman’s lack of evidence “lethal.”
Some of us practically lived in this modern, but elegant, legal arena on the third floor of the Minnesota Judicial Center for seven weeks, with its amber light and three once — and again — unknown judges tucked to the left of the light-wooded bench.
In those days, when the gallery was mostly devoid of spectators, two mahogany tables faced the judges. Mountains of white and blue three-ring binders or exhibits of rejected absentee ballots surrounded them. Witnesses described their ballots, voters told their stories, county auditors detailed Election Day procedures, and state officials explained registration systems.
Today, the set of the stage changed. The lawyers’ tables were turned facing each other, not toward the justices. Coleman’s team, led by Friedberg and Tony Trimble, sat to the judges’ right. Franken’s team, led by Elias and David Lillehaug, sat to the judges’ left, opposite sides of the courtroom from the trial days.
During the trial, Judges Elizabeth Hayden, Kurt Marben and Denise Reilly, sat together on the far left side of the courtroom. Today, the justices hearing the case filled the middle five brown, high-backed leather chairs of the seven that were in place.
One chair on each end of the panel was vacant because Chief Justice Eric Magnuson and Justice G. Barry Anderson recused themselves from the case because of their earlier role in proceedings; they were members of the State Canvassing Board, which originally ruled Franken the winner of the recount way back in January … long before Arlen Specter switched political parties, before Sonia Sotomayor was nominated to the Supreme Court and Franken’s potential 60th vote in the Senate became even more important to President Barack Obama.
Like an Agatha Christie mystery, all the key players arrived on the scene, as if reprising their performances since the recount began. Friedberg, the dapper, 72-year-old Minneapolis defense lawyer, showed up by 8:15 a.m., 45 minutes before the start of the argument, wearing his father’s lucky cufflinks and spraying throat-soothing liquid into his laryngitis-afflicted throat.
Soon after, Coleman himself walked in, accompanied by his criminal defense lawyer Doug Kelley, who is handling any matters related to an ongoing FBI investigation of Coleman.
Elias — a foot taller than Friedberg and 32 years younger — studied a binder of material at his table as other lawyers for both sides kibitzed near the Coleman legal table.
It was like a reunion. Lots and lots of guys in nice suits.
By 8:30, the courtroom’s gallery was packed. History was on tap.
Show me the votes
Through that historic election contest trial, through those 35 days of testimony and bluster, of thousands of pages of transcripts and exhibits, and countless hours of in-chambers sessions with the trial judges, Elias kept challenging Coleman’s team of attorneys for one thing: “Show us the evidence of widespread, systematic inconsistencies. Show us the votes.”
In February, during Week Four of the trial, when Franken was ahead by 225 votes, Elias told reporters one day: “Look, if they believe that there are 226 or more individual voters who met all the criteria under state law to have their absentee ballot counted, they ought to bring them.”
Coleman never did. Indeed, during the trial, Franken gained ground on Coleman, although the election contest was Coleman’s to bring and it was his burden to prove the election was flawed.
Today, it seemed, the justices of the Minnesota Supreme Court were saying, essentially, the same thing. Show us the evidence. Show us the votes. Show us your case. We don’t see it.
Once, Justice Lori Skjerven Gildea sharply rebuked Friedberg when he tried to explain that the election contest panel had prevented Coleman from presenting certain evidence during the trial.
Gildea: “Where did the contest court so rule?”
Friedberg: “It ruled right from the beginning, your honor, and we answered it by submitting in an offer of proof …”
Gildea: “Pardon me for interrupting, but when I say where, I mean where. Page citation in the record.”
Later, questioning again the form in which Coleman’s side presented evidence during the trial, Dietzen said: “I’ve never seen an offer of proof like this … It doesn’t identify witnesses. It doesn’t identify what they’re going to say … Why is this offer of proof not inadequate? … We don’t have admissible evidence that can be considered by this court in determining whether you’ve met your burden.”
Later, Justice Helen Meyer told Friedberg that the three-judge panel ruled that Coleman hadn’t met his burden of proof.
There were some isolated problems [on Election Day], but nothing far-ranging, she said.
“How are we to say that the [three-judge] panel here abused its discretion in making that conclusion? … Where in the record is there … evidence from the overwhelming majority of counties and cities? … You’re asking us to presume.”
What it means
It is always unwise to infer judges’ conclusions from their questions. But it is also folly to suggest that when five learned justices beat up a respected Minneapolis lawyer that it doesn’t mean something.
Raleigh Levine, William Mitchell College of Law’s elections expert, said the importance of the line of questioning on evidence is profound.
That’s because Coleman’s most far-reaching claims — that there were constitutional violations of equal protection and due process — have no foundation without adequate evidence, he said.
But, Levine said, “What the Supreme Court was saying was, we don’t even get [to constitutional issues] because both of these arguments are premised on the idea that there was widespread treatment of ballots, that people were somehow getting away with something. And you haven’t proved that to us.”
That evidence — that the justices seemed not to be seeing — “that’s the predicate for equal protection and due process claims,” Levine said. “You’ve got to show where the record demonstrates that there are so many ballots that were treated in the way you’re alleging. You’re asking us to speculate on the basis of some examples.”
But, more significantly, if the Minnesota Supreme Court should rule in Franken’s favor and rule that there wasn’t enough evidence to even raise equal protection and due process issues, then, that would “insulate their decision from U.S. Supreme Court review.”
If the evidence isn’t there, then there’s no constitutional matter for the U.S. Supremes to tackle.
Coleman’s federal efforts — assuming there were any — would be less than slim.
Perhaps the most thoughtful exchange of the day came between Elias and Justice Anderson, who seems to have a way of putting complicated matters into simple terms.
Anderson asked Elias if any illegal votes were counted during this lengthy canvass, recount and trial. And, of course, we know that some votes that were counted by local elections officials might not have passed the muster of rules later established by the three-judge trial court.
Elias said, well, sure, “It’s fair to say that in every election in every county and precinct” ballots somewhere aren’t signed, voters somewhere aren’t registered. Election stuff happens.
Anderson: “We’re talking here about the universe of Minnesota absentee ballots … You say there is some intelligent design mandated by statute. There is not chaos. It is order … There may be some and you can see some aberrant star systems or galaxies … What Mr. Coleman is focusing on is, ‘Look at this aberrant galaxy … This is proof that the universe is chaos.’ The fact is they’ve shown me that. They’ve shown there’s some chaos in this universe … Tell me why [it matters that we] can’t see the whole universe, but they’ve shown us enough?”
Because Elias said, Coleman can’t speculate, can’t suggest there has been an “amalgam” of problems. The errors statewide have been “garden variety,” not widespread or fraudulent.
Coleman, he said, has to show them the votes, and there aren’t enough out there to overcome Franken’s lead, even though Coleman is seeking as many as 4,400 votes to be counted.
As Elias uttered the words “garden variety,” Coleman eight feet away to Elias’ left, slowly, but clearly, shook his head back and forth, disagreeing.
So, what’s going to happen?
Justice Alan Page, sitting as the chief for Magnuson, said the court would take the matter under advisement.
According to Professor Peter Knapp at William Mitchell Law School, the state’s premier Minnesota Supreme Court follower, the court has been remarkably unanimous in its opinions.
In 2008, out of 102 full opinions, only 18 included dissents. This year so far, 35 cases have been decided, but with only seven dissents.
By comparison, the U.S. Supreme Court’s cases include dissents 40 percent of the time, or about twice as often.
Last month, Knapp predicted a ruling by June 18.
For his part Coleman met the cameras after the hearing and said: “Whether your vote counts shouldn’t depend on where you live.” He was repeating a Friedberg line, making the case that different voters in different counties were treated differently.
Will he appeal this if he loses?
“Let’s see what this court does,” Coleman said. “Let’s see what the decision is … At this point, my firm hope — and fervent hope — is that we enfranchise over 4,000 more Minnesotans.”
But his lawyer didn’t seem to convince five very important Minnesotans in robes today in Courtroom 300, a legal stage that hasn’t been kind to the former senator.
Jay Weiner can be reached at jweiner [at] minnpost [dot] com.