The Al Franken Decade

It took almost a decade for this recount to resolve itself, but the Minnesota Supreme Court rendered their verdict in the Franken-Coleman Senate case, and it's a sweep for Franken, as expected.

In the Matter of the Contest of the General Election held on November 4, 2008, for the purpose of electing a United States Senator from the State of Minnesota, Cullen Sheehan and Norm Coleman, contestants, Appellants vs. Al Franken, contestee, Respondent.

1. Appellants did not establish that, by requiring proof that statutory absentee voting standards were satisfied before counting a rejected absentee ballot, the trial court's decision constituted a post-election change in standards that violates substantive due process.

2. Appellants did not prove that either the trial court or local election officials violated the constitutional guarantee of equal protection.

3. The trial court did not abuse its discretion when it excluded additional evidence.

4. Inspection of ballots under Minn. Stat. § 209.06 (2008) is available only on a showing that the requesting party cannot properly be prepared for trial without an inspection. Because appellants made no such showing here, the trial court did not err in denying inspection.

5. The trial court did not err when it included in the final election tally the election day returns of a precinct in which some ballots were lost before the manual recount.

And here's the money quote:

For all of the foregoing reasons, we affirm the decision of the trial court that Al Franken received the highest number of votes legally cast and is entitled under Minn. Stat. § 204C.40 (2008) to receive the certificate of election as United States Senator from the State of Minnesota.

Tim Pawlenty has said all along that he would certify the winner of the election if the Minnesota Supreme Court told him to do so. They have now told him. But all along he gave himself an out, that he would certify it as long as another court didn't tell him to stop pending another appeal. Coleman could proceed to the federal courts at this point, and national Republicans have been happy to bankroll him on that fruitless quest and keep Al Franken out of the Senate as long as possible. Also, Senate Republicans could actually filibuster Franken's entry into the Senate, even with a signed certificate. I'm skeptical that this will move so smoothly from here.

More from Eric Kleefeld.

...Here's the head-of-a-pin dance that Pawlenty could spin:

The bottom line is that the Court says that Franken is entitled to an election certificate, but there is no direct order to the state's governor to sign one. We'll see what the governor does, if Coleman does not concede, as he well may at this point. If not, the opinion is not final until the period for rehearing ends (see the final footnote of the opinion). That's a ten day period, enough time to file an emergency stay application in the U.S. Supreme Court. It would go to Justice Alito, now circuit justice for the Eighth Circuit.

Pawlenty Will Seat Franken - Unless He Doesn't Have To

Roll Call relies on some sources in the Coleman camp and concludes that the former Senator may give up the fight on appealing the election victory of Al Franken if the State Supreme Court comes down against him, because "Coleman anticipates that Gov. Tim Pawlenty (R) would ultimately sign Franken's certification papers."

Maybe Coleman knows something I don't, and probably so. But it looks to me that Pawlenty has given himself plenty of outs.

Pawlenty appeared this afternoon on the Neil Cavuto show, and Cavuto observed that Pawlenty's decision to not run for a third term, which many people see as a possible lead-up to a presidential campaign in 2012, also frees him up to fight for Norm Coleman. Pawlenty denied that he would behave in such a manner -- but he did point out some possible circumstances that could hold things up further:

"So you could be signing a certificate that would turn that Senate seat over to the Democrat Al Franken?" Cavuto asked. "And that would probably not suit you well."

"Well, I hope not, but you know I have to follow the law," Pawlenty responded. "You know, Neil, if the Minnesota Supreme Court says, 'You sign the certificate' -- and there's not an appeal or some other contrary direction from a federal court -- you know, that's my duty." (emphasis mine)

In other words, he'll sign the certificate as long as Coleman doesn't appeal to federal courts. And there's no real time-sensitive limit on how long Pawlenty could wait for that appeal to transpire.

I just don't think it's a closed deal, and Democrats need to keep up the pressure to get Franken seated.

...Kevin Drum is pretty skeptical of the sourcing on Coleman's wavering.

Elections Are A Minor Inconvenience

Minnesotans want Norm Coleman to concede, by a two-to-one margin, so they can move on with full representation in their government. And the DNC has turned up the pressure by demanding that Coleman concede. But Norm Coleman and his business buddies don't care.

A group of several dozen of the most influential business lobbyists in Washington is vowing to raise and spend whatever it takes to bankroll Norm Coleman’s upcoming appeal fight, in the wake of a three-judge ruling declaring that Al Franken defeated Coleman in the Minnesota Senate race.

The group of lobbyists, which calls itself “Team Coleman,” is made up of some of the biggest players in D.C.’s permanent lobbying establishment, and includes executives from the U.S. Chamber of Commerce, the National Federation of Independent Business, the National Restaurant Association and others.

“We will raise as much as is necessary,” Dirk Van Dongen, a leading member of Team Coleman and the president of the National Association of Wholesaler-Distributors, told me in an interview. “We’ll keep raising money as Norm needs it. We continue to be active in raising resources for Norm to carry out this fight to the end." [...]

But Democrats are likely to point to the lobbyists’ fundraising as proof that they’re merely keeping this battle alive to keep the seat vacant and prevent Dems from getting a leg up in the big upcoming policy battles involving the business lobbies, such as the battle over the Employee Free Choice Act.

Van Dongen (who is the father of WhoRunsGov editor Rachel Van Dongen) rejected that claim.

“That’s a side benefit,” Van Dongen said, when asked if the goal was to keep the seat vacant. “But this is all about us doing everything we can to be sure that Norm has had a fair election and to get him back in his Senate seat. We’d be doing exactly the same thing if the Republicans were in the majority.”

Well, there you have it. The amount of corporate money plowed into a doomed-to-fail project is a small price to pay for the "side benefit" of keeping that 59th Democratic vote out of the Senate. I wonder if Team Coleman funded any of the tea parties, too.

And we're beginning to see this obstruction and delegitimizing of the election system as a pattern. In NY-20, where Scott Murphy has moved into the lead on the strength of absentee votes and is heavily favored for victory if the numbers continue to flow in at this level, the Republican candidate Jim Tedisco and his buddies from the Brooks Brothers Riot Roger Stone and John Sweeney have decided that their best option is to suppress as many votes as possible, and use the language of "voter fraud" to deny legitimate voters the franchise. Despite the fact that actual cases of fraud are almost nonexistent. Not even the junior Senator from New York has been spared.

This just in from Columbia County: when Sen. Kirsten Gillibrand’s absentee ballot came up in the queue, the poll watchers for Jim Tedisco objected to it, saying the senator was in the county on election day and should have voted in person.

Gillibrand's office maintains that she wasn't in the county on Election Day.

And today, a judge said that most of Tedisco's 1,200 objections are invalid. But this statement by a Tedisco ally says it all.

They're not doing it because they believe the votes to be illegitimate, really. What they're doing, in the days and now hours leading up to the court hearings that will decide the outcome of the race between Republican Jim Tedisco and Democrat Scott Murphy, is creating a fact on the ground for the judiciary to overturn, if it dares [...]

"It's always better to be ahead-that's the whole goal of this process," said Nick Spano, a Yonkers Republican and former state senator who came out on the right side of a lengthy recount process in 2004, eventually winning by 18 votes.

This will never end. The Coleman and Tedisco cases can be put on a continuum. Conservatives now see electoral results as simply a starting point. They have adopted the cries of "stolen elections" from 2000 and 2004 and turned them right around. It was all so very predictable. They've had a plan for stealing elections for years and years, and Coleman and Tedisco are just following the playbook.

The latest and most elaborate of these jokes is the urban legend that American elections are rife with voter fraud, particularly in the kinds of poor and minority neighborhoods inhabited by Democrats. In 2002, Attorney General John Ashcroft announced that fraudulent voting would be a major target of the Department of Justice. As the New York Times reported last month, the main result of this massive effort was such coups as the deportation of a legal immigrant who mistakenly filled out a voter-registration card while waiting in line at the department of motor vehicles.

But the administration has remained ferociously committed to suppressing voter fraud -- as soon as it can find some. In April of last year, Karl Rove warned a Republican lawyers' group that "we have, as you know, an enormous and growing problem with elections in certain parts of America today. We are, in some parts of the country, I'm afraid to say, beginning to look like we have elections like those run in countries where the guys in charge are, you know, colonels in mirrored sunglasses. I mean, it's a real problem.

"I appreciate that all that you're doing in those hot spots around the country to ensure that the ballot -- the integrity of the ballot is protected, because it's important to our democracy."

The goals here are to intimidate and alienate people from the voting process, suppress as many votes as possible, and delegitimize the victory, even if the Democrats manage to run the legal gauntlet and win. Eventually, Al Franken and Scott Murphy will be seated in Congress. But there's no harm for the Republicans to just keep on with the same dirty tactics, with a look to the next election, when they can whisper about how "the Democrats stole the last one."

...Howard Dean on Hardball today: "This could be a national pattern ... this looks like a national attempt by the Republicans to keep people out of office if they have a D after their name."

DNC Finally On The Offense

They had to wait until the decision was handed down, but now that a three-judge panel has ruled that Al Franken won the election, and now that the conservative movement is fracturing, they can cleanly come out and tell Norm Coleman to go home.

Gov. KAINE: Norm Coleman lost on Election Day, he lost the recount, now he's lost a stinging rejection in court. My sense is the only reason anybody is prolonging this is they're trying to delay putting somebody in the Senate who will be willing to vote with President Obama to accomplish what is right for this nation. It is time to stop disenfranchising Minnesotans, put a second Senator in for that state, and set this behind us.

And the DNC is putting its money where its mouth is by running radio ads in Minnesota, saying that Franken is "entitled to receive the certificate of election."

It's well beyond time to put this pressure on, although the ask shouldn't have been to call Norm Coleman but to call Gov. Pawlenty and tell him to sign that certificate immediately.

MN-Sen: Pawlenty Lets His Slip Show

It was quite fun watching Joe Scarborough jump off the Good Ship Norm Coleman this morning. And I agree that the lack of any statement from the top Republican campaign arm in the Senate or the RNC is quite telling. But ultimately, the conservative movement has shown no ability to be swayed by the media or public opinion, and I'm confident that they will continue to obstruct for obstruction's sake:

For weeks, Pawlenty has said he would take direction from the courts, but is now suggesting that he could wait beyond the conclusion of state appeals if the case heads to federal court.

"I don't know whether [the certificate] would be required to be issued. I think it could be issued at that time," said Pawlenty. "I'm not saying I wouldn't issue the certificate. I'm just saying we should have all of the facts in front of us before we precommit to something like that." [...]

For his part, Pawlenty said the loser may decide against appealing in federal court. But if an appeal is filed, Pawlenty said he may wait to see how the courts handle Coleman's argument that there was not a uniform standard used to count the votes.

"I also would want to look at what the courts did with the case in terms of leaving issues for potential appeal, the strength of those issues, how directly and effectively they addressed them," said Pawlenty. "I'm not saying that I'm going to, or not going to, issue the certificate at that point. I just want to make sure I have all the facts in front of me before I made a decision like that."

"With all due respect to Gov. Pawlenty, it's not his job or his role to try to second-guess or Monday-morning quarterback the State Supreme Court," said Marc Elias, an attorney for Democrat Al Franken.

Pawlenty can issue the election certificate as soon as the Minnesota Supreme Court rules on the appeal (which I'm sure Coleman will wait the full 10 days to file). He's threatening here to drag it out as Coleman tries his luck in the federal courts. And even if he goes ahead and signs the certificate, the obstructionist caucus in the Senate will probably filibuster Franken's seating. If that doesn't argue for fundamental change in the Senate rules, nothing will.

...in a conference call, the Coleman campaign affirmed that they will appeal, but of course they haven't filed the appeal and will probably wait the full 10 days to drag it out. BECAUSE THAT'S THEIR ENTIRE M.O.

FWIW

Al Franken won the 2008 Senate election in Minnesota.

Over five months after the election, a three-judge panel has declared Democrat Al Franken the winner of the Minnesota U.S. Senate race.

The judges issued their final ruling late Monday, stating "Franken received the highest number of lawfully cast ballots in the Nov. 4, 2008 general election."

They also have determined that Franken is entitled to receive the certificate of election.

In most countries, this would mean that Franken would receive that certificate and actually enter the Senate. But as long as Norm Coleman has a few wealthy benefactors willing to bankroll him, he can appeal. Again and again. Now, the Supreme Court might not have anyone available to hear that appeal, since two justices served on the state canvassing board, and one has donated money to Norm Coleman in the past. But of course, the Minnesota Supreme Court is just a stepping stone to a federal district court of appeals. Which is just a stepping stone to the US Supreme Court. Which is just a stepping stone to some other judicial body Coleman can find. Which is just a stepping stone to the 2014 rematch. Franken will only have been an incumbent for a few months by then.

...That's amusing, the three-judge panel cited Bush v. Gore in their opinion - specifically, the part where it declares itself "limited to the present circumstance."

Buh-Bye, Norm, The Rats Are Jumping

After seeing the culmination of a months-long trial result in Norm Coleman being further behind, the more intellectually honest conservatives are jumping off the ship. Ramesh Ponnuru says "I think it's time for him to give up this fight." A Minnesota paper that endorsed Coleman wants him to give up. And Powerliner Scoot Johnson, in a bold rush of reality-based thinking, actually sets the wingnut faction straight on the "Franken stole the election" nonsense.

The erosion of Senator Coleman’s approximately 215-vote lead over Franken after the election canvass, and the emergence of Al Franken with a 225-vote lead over Coleman on January 5 after the recount, have given rise to the implication that Franken stole the election. The January 5 Wall Street Journal editorial “Funny business in Minnesota” is representative of this strain of commentary, which implies that Coleman has been a victim of Democratic shenanigans.

For a while, I thought so, too. If I had observed the events through the media outside Minnesota, I would still think so. As a Minnesotan with a closer view, with friends lodged in every corner of the post-election proceedings, I have a different perspective on the chain of events that has brought Coleman to his imminent loss to Franken [...]

The Board of Canvassers that was convened to preside over the recount and rule on challenged ballots conducted itself honorably under difficult circumstances. In addition to board chairman Mark Ritchie, the Man from ACORN who is Minnesota’s secretary of state, four judges served on the board: Minnesota Supreme Court Chief Justice Eric Magnuson, Associate Justice Barry Anderson, and Ramsey County District Court Judges Ed Cleary and Kathleen Gearin.

I have known Chief Justice Magnuson professionally for more than 25 years. Justice Anderson was my law-school classmate and is my friend. In my view, they are two of the best judges serving in the Minnesota courts. Although the board’s rulings on challenged ballots favored Franken during the recount, there was no noticeable partisan division among the board. Accordingly, the imputation of misconduct to the board such as is implicit in the Journal editorial is misplaced. Whatever inconsistencies the board committed in ruling on challenged ballots and other issues does not appear to have resulted from partisan mischief. In any event, the board’s ruling on challenged ballots put Franken up by only 49 votes.

He's still Scott Johnson from Powerline, so he can't resist a few shots, but he basically admits that Franken's team did a better job in the post-election phase of things, and they didn't steal the election. Which is the most I can hope for out of someone like him.

Of course, to assess Norm Coleman's legal team on the basis of wanting to win the election is I think misplaced. For several months their entire focus has been to delay the final conclusion. While Johnson claims Coleman's lawyers just bungled the case, in truth they simply drew it out, once defeat was made inevitable by virtue of all the wrongly rejected absentee ballots. Since then, they have executed their legal strategy perfectly, evidenced by the fact that Al Franken remains a Senator-elect and not a United States Senator. But the wavering in the conservative community might actually bring this to a somewhat swifter conclusion.

+87

How many more times do we have to go through this?

351 ballots were counted today.

It was aired live via The Uptake.

They just announced that, of the 351 counted, the breakdown was:
Senator-elect Al Franken: 198
Norm Coleman: 111
Other: 42

Senator-elect Franken picked up 87 votes. Added to the 225-vote tally, Senator-elect Franken leads by at least 312 votes (and that is before taking into account the "Nauen61" case that may add dozens more Franken votes to the tally).

Norm Coleman has found himself further behind at every single step of this process. It's truly embarrassing that this continues to be allowed to go forward. We need a fast-tracked appeal to the Minnesota Supreme Court, and then a signed certificate of election. Al Franken has won this race.

MN-Sen: The End of the Beginning of the End

Today we may get a final count in the race from 23 years ago between Norm Coleman and Al Franken. As Keith Pickering notes, Coleman has already been virtually mathematically eliminated by virtue of the total of the votes that will be counted today. Originally 400 were to be counted, but 13 were found to be duplicates yesterday.

That leaves 387 absentee votes remaining in Coleman's ever-shrinking ballot universe. Based on prior returns, we can expect 16% of them (62 ballots) to be cast for Dean Barkley and other candidates, leaving 325 ballots for either Coleman or Franken.

But we already know that there are 35 votes for Franken from the Nauen group, plus another 12 subject to prior summary judgement that are also from Franken's team. And this morning's Star-Tribune also revealed that one absentee ballot from Aitkin County is definitely for Franken. That's 48 known Franken votes. After those votes are counted, the Franken lead will be
225 + 48 = 273

... and the remaining votes to be counted will be:

325 - 48 = 277

So Al will lead by 273 votes with 277 left to be counted. With just 3 votes out of those 277, Franken will win.

Of course, "winning" isn't everything, in this race. Coleman seeks only to prolong the court battles and delay the outcome. A cushy lobbying job surely awaits him anyway, and his Republican minders will look well on this obstruction of Al Franken. Minnesota's Republican governor Tim Pawlenty, himself a possible 2012 Presidential candidate, said yesterday that the race would last "a few more months" while the appeals process is exhausted.

"It's frustrating that this has taken so long, but we need to get a proper and just and accurate and legal result," said Pawlenty. "It gonna take, it looks like, a few more months to get that."

"I know that you -- a few more months, huh?" answered Norah O'Donnell.

A governor truly interested in full representation in Washington for his constituents would demand a speedy conclusion and a fast-tracked appeals process. Tellingly, Pawlenty has not done that.

Answer The Question, Norm

Todd Beeton reports that Norm Coleman continues to talk about soldiering on in the Minnesota Senate recount, which is to be expected at this point. He has every right to appeal the decision of the three-judge panel when it's brought down next week to the Minnesota Supreme Court. After that, however, all bets are off. And it would be nice, if he's seeking out all this attention, if he would answer some other questions on the record.

There have been reports that the FBI had opened an investigation into allegations in the Texas lawsuit and a similar one in Delaware. Asked if the FBI had contacted him, Coleman smiled and shrugged his shoulders.

“I can’t say anything,” he said. “We want this matter to be fully reviewed and fully investigated because nothing happened and we are looking forward to that taking place.”

And on that note, we arrived at Coleman’s car and he ended the conversation by turning and putting his hands on my shoulders.

“Too many questions,” he said, laughing.

Then, he hopped into the passenger seat and was driven away with a wave and another broad smile.

I have no problem with Coleman taking interviews and pleading his case as long as he answers whether or not the FBI has an ongoing investigation into his corruption practices. DSCC Communications Director Eric Schultz agrees:

"If Norm Coleman is going to continue his farfetched legal appeal, the least he can do is answer if the FBI is investigating him," said DSCC Communications Director Eric Schultz. "It is a yes or no question that Minnesotans deserve an answer to. There are now two executives who have gone under oath - under penalty of perjury - affirming the criminal conspiracy to funnel $100,000 to a sitting U.S. Senator from one of his top donors. Norm dodged the question before the election - but he ought to fess up now."

Shouldn't be too hard, he's on Fox News every 30 minutes.

...Incidentally, election law expert Rick Hasen says Coleman has no shot at a case before the federal courts if the Minnesota Supremes don't decide in his favor.

The Never-Ending Election

This is only a crushing verdict for Norm Coleman if you think he's still in this to win the election, which I don't.

In a potentially decisive ruling, a panel of three judges today ordered up to 400 new absentee ballots opened and counted, far fewer than Republican Norm Coleman had sought in his effort to overcome a lead held by DFLer Al Franken.

The ballots appear to include many that Franken had identified as wrongly rejected as well as ballots that Coleman wanted opened. About half come from Hennepin, Ramsey and St. Louis counties, places Franken won by significant margins.

Spokespersons for Coleman and Franken were not immediately available for comment.

The panel emphasized that some of the nearly 400 ballots might not be counted, but were included in the order because their eligibilty was unclear.

Apparently these will be counted next week. With Franken holding a 225-vote lead, 400 ballots, especially when half of them were requested by Franken, will not make a difference. One hopes that the three-judge panel will swiftly rule on the victor after that, with a quickie appeal to the Minnesota Supreme Court resulting in a certificate of election, and then Democrats can scream bloody murder to get Franken seated. This has really gone on long enough.

"Years"

It's already astounding that the Norm Coleman-Al Franken Senate recount has taken this long to resolve. Franken has won the first recount and Coleman's lawyers even acknowledge that he will win the case before the Minnesota Supreme Court when the verdict comes down shortly. But this is the first time I've heard the word "years" to describe the timeframe for resolution.

Texas Sen. John Cornyn is threatening “World War III” if Democrats try to seat Al Franken in the Senate before Norm Coleman can pursue his case through the federal courts.

Cornyn, the chairman of the National Republican Senatorial Committee, acknowledges that a federal challenge to November’s elections could take “years” to resolve. But he’s adamant that Coleman deserves that chance — even if it means Minnesota is short a senator for the duration.

The big question concerns certification of the election. Democrats say that the Minnesota Supreme Court will grant certification after their ruling, regardless of an appeal. Cornyn thinks that Minnesota will be unable to certify if Coleman seeks a review from the US Supreme Court on the matter. Of course, the real "decider" in this case may be Republican Governor (and possible 2012 Presidential candidate) Tim Pawlenty.

It could takes months — or longer — to resolve a petition for review from the U.S. Supreme Court and even longer if the loser before the Minnesota Supreme Court files a new case in a U.S. District Court.

What happens in the meantime could come down to Minnesota Gov. Tim Pawlenty, a Republican who was on John McCain’s vice president shortlist and is contemplating a run for the GOP presidential nomination in 2012.

So far, Pawlenty isn’t saying what he’ll do once the court rules.

“The recent Minnesota Supreme Court decision indicated that an election certificate could be issued once the state courts process is complete,” said Brian McClung, a spokesman for the governor. “However, if one of the parties appeals to a federal court, a question will arise whether the federal court might stay the issuance of a certificate.

“We’ll see what the courts determine,” he said.

20 guesses what the guy who may want to top the GOP ticket in 2012 will decide.

I've been saying for a while that this recount battle obstructing Franken from the Senate was a sweet deal for Republicans. They get to expend some resources and shockingly little political capital in exchange for denying Democrats a key vote on issues like health care and energy and the Employee Free Choice Act. There was some hope that the "losers pay" law in Minnesota, combined with Norm Coleman's campaign inadvertently revealing thousands of their donors' personal information online, would make it difficult to raise the necessary funds to continue the court battle. However, a little-remarked-upon FEC ruling allows both candidates to return to former maxed-out donors to pay up to $30,400 per individual into a party recount and trial fund. Even PACs can give up to $15,000. So it would take a relatively small amount of wealthy donors to keep this going as long as possible.

What I cannot understand is why Coleman has taken such little heat for prolonging what by all accounts appears to be a losing battle, and for nakedly political reasons besides. Once the Minnesota Supreme Court rules in a matter of days, Democrats need to loudly call for Franken's seating at every possible opportunity.

"Done" Sounds Like A Good Idea

Joe Friedberg, the attorney for Norm Coleman in his battle to keep the 59th Democratic seat out of the US Senate admits defeat:

Q. Joe, are you done?

A. Yes, I'm done.

Q. Let me ask you in a different way. Is Norm done?

A. Well, I think that we have been trying this case with the appeal record in mind, and that's where we're going, and it's going to be a very quick appeal, and then I will know whether or not it worked.

Q. Well, when you say quick appeal, are you confident that you are going to lose the case in front of the three-judge panel? By losing the case, I mean Norm ends up with less votes.

A. I think that's probably correct that Franken will still be ahead and probably by a little bit more. But our whole argument was that it was a constitutional argument, and it's an argument suitable for the Minnesota Supreme Court, not for the trial court. So we will see whether we were right or not.

Actually their whole argument was not an argument, but a way to obstruct Al Franken's seating for as long as possible. Our deliberative judicial process allows such obstruction, but let's not kid ourselves about arguments being suitable for one court and not another. Slowly working through the process was the whole point.

So, months after the election, and several weeks after the Supreme Court trial, Coleman's own lawyer admits that his client will wind up in worse shape than before, and that he was arguing to the wrong court this whole time to intentionally set up an appeal. Since the loser pays in Minnesota courts, at least Coleman will get his money's worth on Al Franken's lawyer. Of course, while Friedberg failed in court, he did his actual job well - it's almost April and Minnesota continues to have one US Senator.

Loser Pays

Al Franken's legal team is nailing Norm Coleman.

Democrat Al Franken wants the judges who heard the U.S. Senate trial to force Norm Coleman to pay court costs and some opposing lawyers' fees -- a potentially expensive bill -- if the Republican loses his bid to overturn the results of the recount.

Franken sought such payments in a document filed Tuesday summarizing his case. In it, he also asks the judges to consider evidence involving 430 absentee ballots that he had identified as wrongly rejected, and is asking specifically that 252 of them be counted [...]

Franken's document asks that Coleman pay the costs of the seven-week trial. And in seeking attorneys' fees for Franken lawyers, it refers to sanctions that the judges earlier imposed on Coleman for failing to follow court rules on disclosing information about a witness, Minneapolis election judge Pamela Howell.

Franken asked for "reasonable costs and attorneys' fees in connection with [Coleman's] failure to disclose."

Asked whether the request for attorneys' fees was limited to fees involving the disclosure flap or other expenses, Franken lead lawyer Marc Elias said, "We're going to leave it to the court to decide that."

This is established law in Minnesota, and would likely be the option of the court anyway. I appreciate the gentle reminder. Because Coleman wants to drag this trial out as long as humanly possible, he should be made to pay for it. At least there would be some cost to the deliberate attempt to overturn an election.

Coleman, who through negligence revealed the personal financial information of his entire online donor base earlier this year, probably has less fundraising juice now. The Republican campaign committees have been furnishing lots of cash, but in a "loser pays" scenario, would they continue to tilt at windmills when the money could be put to use in elections they actually have a chance at winning?

Play Hardball, Al

Eric Kleefeld has done America and the blogosphere a great service by painstakingly documenting the Minnesota Senate recount trial between Norm Coleman and Al Franken. Closing arguments were made today, and Senator-elect Franken's were pretty strong. But of course, like any trial, after Coleman loses this challenge he will have the right to appeal. And then perhaps an appeal up to the Supreme Court. So we're looking well into the summer before Franken could be seated, with the possibility that the Supremes would pull a Bush v. Gore and overturn a settled and well-adjudicated election.

However, Franken does have a tool in his toolkit, should he want to use it, and given how slimy Coleman has been throughout this entire process, I see no reason why he shouldn't.

The election-contest proceeding operates under a loser-pays system -- so if Coleman loses, his campaign committee would have to pay all the legal costs of Team Franken. Those numbers aren't publicly available, but Schultz estimates it at anywhere between $1-3 million.

And it's also normal procedure in such civil cases, Schultz explains, for a losing party that appeals to then be served a court order requiring them to place in escrow the amount for which they are currently liable. So if Franken's lawyers are smart people -- and nobody would doubt that they are -- Schultz sees it as very likely that they would seek to force Coleman's committee to procure millions of dollars up front just so they could start an appeal. "I think it's very likely -- not a certainty but very likely -- a court would agree with that," said Schultz, "for the Coleman campaign to provide the costs and legal fees."

And after some additional legal wrangling, a decision like this could effectively end it: "A one-two combination of asking for the escrow, and having the money dry up because of the credit-card problem, that could very well dictate how far he goes."

If Republicans are going to obstruct, they ought to be forced to pay for it. Considering that the RNC and the campaign committees are short on cash as it is, this is probably the only way to get Coleman to cut his losses. Franken's legal team should absolutely pursue this.

...Mitch McConnell is talking about going all the way to the Supreme Court. OK, Mitch, you can pay for it, then. And Al Franken's lawyers are pricey. Because they're actually good.

Set It Aside

Norm Coleman thinks that we shouldn't argue anymore about who beat who and just try again in the spirit of compromise:

For more than a month, Norm Coleman stressed flaws in Minnesota's election system.

And on Monday, Coleman lawyer Jim Langdon wrote the three-judge panel to suggest the problems are so serious they may not be able to declare a winner.

"Some courts have held that when the number of illegal votes exceeds the margin between the candidates -- and it cannot be determined for which candidate those illegal votes were cast -- the most appropriate remedy is to set aside the election," Langdon wrote in a letter to the court.

Coleman continued this line of reasoning in an interview today, saying that "there is a question whether this court can certify who got the most legally-cast ballots."

This is basically an admission of defeat, as this DSCC spokesman said cleverly today ("I'm sure Senator John McCain would like to throw out the results of November 4, 2008 as well"), but even if it doesn't succeed, it furthers the conservative project. There has been a simmering effort in conservative circles to delegitimize the election process - to characterize any poor or black voter as a potential fraudster, to accuse community groups like ACORN of stealing elections, to cast doubt on the process in general. This serves two purposes - 1) it sets the stage for increasingly draconian voter ID laws that intentionally suppress Democratic votes, and 2) it throws a shroud of suspicion over any Democrat who happens to get elected. Al Franken will never be seen as a legitimate Senator to the majority of the right - despite his going through the regular channels of the recount process, he will be painted as a thief, a usurper, an illegitimate pol who used the activist courts to take away Norm Coleman's rightful place in the Senate.

And that's the other part of this - to question the impartiality of judges and the legal process. The Minnesota Supreme Court made a few rulings during the recount process, but by and large the elections system was allowed to work on its own. But that doesn't matter - if and when the court issues a final ruling, the Coleman camp will not only appeal but blast the legal system for handing the election to Al Franken. The more sinister prospect here is to further the depiction of judges as wild liberal activists who must be stopped. Related to that is Republicans' new demand to the President, signed by every Senator in their ranks, to confirm George Bush's judges or face filibusters:

President Barack Obama should fill vacant spots on the federal bench with former President Bush’s judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

In a letter to the White House, the Republican senators said Obama would “change the tone in Washington” if he were to renominate Bush nominees like Peter Keisler, Glen Conrad and Paul Diamond. And they requested that Obama respect the Senate’s constitutional role in reviewing judicial nominees by seeking their consultation about potential nominees from their respective states.

“Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee,” the letter warns. “And we will act to preserve this principle and the rights of our colleagues if it is not.”

In other words, Republicans are threatening a filibuster of judges if they're not happy.

And thus we see how the conservative movement always moves forward, like a shark. I eagerly await the Republican Senator who says "Obama would rather deny these fine jurists and nominate people like the ones who stole the election for Al Franken in Minnesota." The Coleman lawsuit is really a textbook example of how one issue is used to chip away at multiple other ones. I know that conservatives appear to be imploding at the moment, but under the radar they are always working to undermine American institutions.

Strong Investment

This endless trial in Minnesota over their US Senate election is really working out well for the Republicans. Norm Coleman's lawyers get to make any wild charge they want, contradicting themselves over what ballots should count and what shouldn't, and in the meantime, the winner of the election, Al Franken, isn't seated as the 59th Democratic Senator, making it harder to break the obstructionism and making the Senate more reliant on the Axis of Presidents Nelson and Collins. It's a great little racket they've got going. So they decided to keep funding it.

The Republican National Committee has transferred $250,000 to the Minnesota GOP to help pay legal fees in Norm Coleman’s ongoing recount battle against Al Franken for the Minnesota Senate seat.

A spokesman for the RNC, Alex Conant, said the committee had made Coleman’s legal battle “a priority because we think he has a case and because we think he deserves to return to the Senate.” The money was transferred last month.

“We certainly appreciate the RNC’s commitment to Minnesota as we are continuing full speed ahead,” said Minnesota Republican Party spokeswoman Gina Countryman.

While the RNC cannot legally earmark funds for specific purposes, RNC sources said the deposit was made under the presumption that it would benefit Coleman’s campaign.

Later in the article it is noted that Coleman has raised $5 million dollars since the election to fund this gambit.

It's amusing to see the RNC baldly say that they "deserve" the seat up there, but that's not what's going on. It's just easy to keep making motions and keep calling witnesses while key legislation gets blocked in the Senate. And yes, one Senator does make a difference. Greg Sargent writes today:

One wild-card in the whole looming battle over the Employee Free Choice Act that’s gotten too little attention is this: When will Al Franken be seated as a Senator?

Labor officials say they’re reluctant to really kick off the battle over Employee Free Choice — a measure to make it easier to unionize that is labor’s top priority — until Franken is officially a member of the Senate.

Indeed, Minnesota’s other Senator, Amy Klobuchar, confirmed yesterday during an event in the state that the Senate has decided not to move on Employee Free Choice until Franken is seated, the Minnesota Post reports. If the House of Representatives pushes for the Senate to vote first on the measure, as expected, this could hold up the fight that much longer.

$250,000 or $5 million is a small price to pay for the Big Money Boyz to keep workers from forming unions. And in addition to gumming up the works for months upon months, they get to delegitmize the electoral process, as well as Al Franken's claim to the seat. It's a really nice investment for them. Better than anything in the stock market these days.

Bye Norm

The Minnesota Supreme Court just ruled that absentee ballots had to have been legally cast to be counted in the Senate election, meaning that at least 13 of the 19 categories of rejected ballots will not be part of any review. Which means that the universe of ballots that Coleman would need to win overwhelmingly just got a lot smaller. Considering that Coleman put an admitted forgerer on the stand to prove thatthese types of ballots should be counted, it's not a surprising ruling. Brad Friedman has more.

Oh well, Norm. But of course, he did his job. He ran interference long enough for the stimulus package to finish without the input of an extra Democratic Senator like Al Franken, increasing Republican leverage over the bill. That's all this lawsuit was intended to do.

God Wants Me To Go Through A Four-Month Long Recount And Court Process... He's Testing Me

If God is Norm Coleman's co-pilot, he's got a funny way of showing it:

Coleman is adept, somewhat too adept, his critics might say, at skillfully tailoring his message to his audience, and that skill set was on full display Friday.

On Friday, Coleman made the media rounds with radio interviews that included conservative nationally syndicated radio talk show host Mike Gallagher. Gallagher, an unyielding fiscal and religious conservative, who hosts one of the Top 10 rated talk shows in the country, has been an outspoken critic of the Congressional stimulus legislation. When Gallagher asked Coleman what he thought of the stimulus bill, Coleman replied that he would not sign it. Coleman did not, however, offer any thoughts as to whether a stimulus bill of some kind would be a good thing for the country and the state of Minnesota (no doubt because Gallagher, and perhaps a large share of his 4 million weekly listeners, is opposed to any sort of government ‘bailout’ - of industries or state governments).

When asked about the recount and how it is affecting him personally, Coleman said he starts every day with a prayer and that he knows “God wants me to serve.” Coleman did later temper those rather immodest remarks by adding that he “is not indispensable” and that others can serve as well. Coleman closed the interview with an appeal to Gallagher’s listeners for contributions to his campaign website.

Wouldn't God have a better way of endorsing Coleman's service than by having him lose the recount and then scrounge for votes one-by-one before the Minnesota Supreme Court? He does work in mysterious ways, then again...

Senator In Exile

Al Franken went to Washington yesterday, despite his imminent entry into the Senate being held up by legal battles. Norm Coleman is now in full-scale "count every ballot" mode despite wanting to shut down the recount when he was ahead. And considering that Franken has won absentee ballots at every step, counting the remaining ones isn't likely to help Coleman either.

It's time to end this, and Harry Reid is vowing to try.

"We're going to try to seat Al Franken," Senate Majority Leader Harry Reid, D-Nev., told reporters on Wednesday, a few hours before he posed with Franken for photos just off the Senate floor. "There's not a question in anyone's mind, an assertion by anyone, that there's been any fraud or wrongdoing in this election."

Coleman's lawyers are challenging the results of the election and the re-count in a trial set to begin in state district court on Monday. A three-judge panel that will hear the case is considering Franken's argument to dismiss it altogether.

Franken finished the re-count ahead by 225 votes. But Coleman's campaign said it will push for a review of all 12,000 absentee ballots that were not counted in the race. Coleman's attorneys said the new proposal could bring as many as 7,000 ballots to the race.

As mentioned above, Franken is pushing for a quick dismissal of Coleman's lawsuit and allowing the Senate, typically the judge of elections for its members, to decide the winner or at least seat someone provisionally. It's about time to end the obstruction and let Minnesota have full representation in Congress.