Norm Coleman, incumbent senator for Minnesota until 3 January 2009, is gambling his political future on the likelihood the Minnesota Supreme Court will rule to allow the inclusion of absentee ballots ruled inadmissible by state officials and by every court venue to date, the counting of which he expects will overturn Al Franken’s narrow lead. Experts are saying the hearing before the court suggests Coleman has little chance of success.
The justices appeared skeptical of claims made by Coleman’s team when asking questions about their argument, according to observers. According to Politico’s reporting:
Peter Knapp, a professor at William Mitchell College of Law in St. Paul, pointed to the court’s oral arguments on Monday, when the justices expressed skepticism toward Coleman’s lawyer, Joe Friedberg.
“Each of the five justices asked some questions that seemed to hone in on the absence of evidence,” said Knapp, an expert on the Minnesota Supreme Court who has kept a close eye on the case. “And when each of the five are asking those questions, that’s significant.”
Acknowledging that “it’s really easy to over-read the judges’ questions as a sign of the way they’re leaning”, Knapp said the experienced observer has to see the tenor of the hearing as a bad sign for the legal viability of Coleman’s case.
Edward Foley, an expert in election law at Ohio State University’s Moritz College of Law, said he would be “surprised” if the court found in favor of Coleman and ordered the lower court to review the case or to open more ballots. Interestingly, Foley said Coleman’s case “always had a fighting chance” and included some valid legal arguments, but that “having a valid legal theory is not enough to win a lawsuit”. The facts have to cohere, and the public interest needs to be clearly in view as relating to precedent, existing law, and the potential future impact of a ruling on the merits.
The apparent hurdle Coleman’s legal team could not get over was the burden of proof. The justices’ questions implied that they did not see any hard proof that ballots were mishandled, and that they believed Coleman’s lawyers could not demonstrate which, if any, ballots were mistreated and required another examination. If the court not only finds against Coleman, but also finds that there is no credible evidence to substantiate the Coleman team’s claims, it would be much more difficult for him to take his case to federal court.
Some Democratic supporters and centrists fear Coleman is determined to stall Franken’s swearing in for as long as possible, and the Supreme Court will be in recess until the fall session, opening in October, which could leave the state without its second senator at least until then, if any federal court would hear Coleman’s case. A coalition of progressive organizations has set up a campaign to raise $1 per day from donors for every day Norm Coleman continues his battle to block Franken being sworn in; the project says it has raised $149,600 and aims to hit $200,000.