Franken-Coleman Race May End Tuesday

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Minnesota's Senate race between Republican Norm Coleman and Democrat Al Franken is still unresolved. A three-judge panel is trying to determine the winner of last November's election.

ARI SHAPIRO, host:

The Senate race in Minnesota has been unresolved for five months now. In case you've lost track, Norm Coleman is the former Republican incumbent, Al Franken is the Democratic challenger and he currently holds a 225 vote lead. A three-judge panel has agreed to review nearly 400 absentee ballots that were initially rejected. And the judges are expected to make a decision on those ballots today. No matter what they determine, we may still not have a conclusion today.

NPR's Juan Williams is here, and like the rest of us, he's trying to sort this all out.

Good morning, Juan.

JUAN WILLIAMS: Good morning, Ari.

SHAPIRO: Ok. Well, help me do the math. If the judges are evaluating about 400 votes, Coleman would have to win about 80 percent of those in order to surpass Franken's 225 vote lead. How likely is that to happen?

WILLIAMS: Highly unlikely. Absentee ballots from across the state, you know, challenged - have been challenged for different reasons, Ari, and there's no clear pattern of ballots coming from one area or one stronghold, either Republican or Democratic Farm Labor, as they're called in Minnesota. So in an election on November 4th, each side here won 42 percent of the vote, 15 percent went to independent candidate.

Norm Coleman, the incumbent, the one term senator, wanted 1,300 rejected absentee ballots to be counted by county election officials. That would've given him a slightly better chance to overcome Franken's lead, about 225 votes out of the 2.9 million that were cast.

After the election, though, Coleman led by 700 votes. After the recount, which was automatic because of the tight race, Franken was up by 225. And so for the moment it doesn't seem that you have enough votes to give Coleman a real chance to turn this around.

SHAPIRO: Ok. So if reading the tea leaves, it seems difficult for Coleman to surpass Franken's lead here, what happens if the verdict comes down, today, in Franken's favor?

WILLIAMS: Well, Ben Ginsberg, who is Coleman's lawyer, is arguing that absentee ballots being thrown out amount to disenfranchising Minnesota voters. And he wants to take the issue, potentially, to the state supreme court.

Meanwhile, Senator John Cornyn, who is the chairman of the Republican Senatorial Committee here in Washington, wants to challenge the election, possibly, in the U.S. Supreme Court. You know, Senator Coleman has said that he wants a new election possibly, but there's no sign that anyone in Minnesota wants to pay for that.

And by the way, Ari, let me just mention here that, you know, Coleman's lawyer Ben Ginsberg is the same lawyer who played a key role for George W. Bush in the Florida 2000 recount. So at the moment it just looks like it's a matter of whether or not the Republicans are willing to prolong this as a result of making appeals to - further appeals - to the courts.

SHAPIRO: Well, how about the Democrats and their lawyers? What are they saying?

WILLIAMS: Well, Democrats in Minnesota and in Washington are just hoping for a clear victory today, of course, based largely on last week's ruling that only 400 ballots can be recounted. The next step would be certification of Al Franken's victory by Governor Tim Pawlenty, a Republican.

Now, the question is will Pawlenty abide by today's ruling or will he respond to pressure coming from Republicans in Washington who say let the process play out, let's go to further court hearings. Pawlenty has his own political future at stake here; he could run for governor a third time; he may have ambitions to run for president and it would damage the party in some minds.

But once the legal process is exhausted in Minnesota, the Democrats expect to have their 57 senators. So they're just laying low for the moment. And remember, they have also Joe Lieberman and Bernie Sanders here in Washington voting with them in the Senate. And that will give them a filibuster-proof majority, potentially on the edge of it. It would need 60 but closer.

SHAPIRO: That's NPR News analyst Juan Williams. Thanks, Juan.

WILLIAMS: You're welcome, Ari.

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SHAPIRO: This is NPR News.

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End In Sight For Coleman-Franken Senate Contest?

Republican Sen. Norm Coleman's chances of prevailing in Minnesota's disputed U.S. Senate contest may be slim, but they're not none.

And if Tuesday's court-ordered recount of 400 absentee ballots fails to erase Democrat Al Franken's current 225-vote lead, Coleman has pledged to take the battle to the state Supreme Court.

The political world is already looking beyond that, bickering over how far Coleman should go if he loses the recount — and if the state's high court subsequently rules that Franken should be certified as the 59th member of the Democrats' U.S. Senate caucus.

Beltway bluster aside, legal experts say that if Coleman decides to make a federal case out of a razor-thin loss to Franken — as national Republican leaders are urging — his odds at getting a new hearing appear long. Even with his lawyers invoking the Bush v. Gore U.S. Supreme Court decision of 2000.

"This is like chess," says Edward Foley, a professor and election law expert at Ohio State University's Moritz College of Law.

"There are 1,000 permutations, but if you weigh all the probabilities," he says, "this is between the Minnesota Supreme Court and the U.S. Senate."

A Coleman appeal directly to the U.S. Supreme Court would be "a Hail Mary," says Richard Hasen, a professor at Loyola Law School in Los Angeles and author of the Election Law Blog.

Convincing a federal court judge to overturn state decisions — particularly if Minnesota judges continue their pattern of unanimity on this case — would prove "a very tough legal road," he says.

So, How Could This Play Out?

Legal experts — and the candidates' attorneys — are not just waiting for the results of Tuesday's recount, which was ordered last week by a three-judge panel.

They also want to see a final decision from those same trial court judges on Coleman's claim that the state's absentee ballot counting process, which differed county-to-county, violated his constitutional right to equal protection — even though he, Franken and their lawyers agreed to standards used in the recount.

It's that equal protection argument that echoes the claim George W. Bush took to the U.S. Supreme Court in his successful effort in 2000 to win the disputed state of Florida and the presidency.

But as a precedent, the high court decision in Bush v. Gore is essentially a legal tabula rasa. It has never been tested by the Supreme Court, though it has been cited in lower-court cases.

"Nobody really knows what Bush v. Gore means as a precedent," Foley says. "There's been no case at the U.S. Supreme Court that has directly implicated the precedent and called on the justices to explain it."

The nation's high court is also unlikely to accept Coleman's request for a rare expedited ruling, experts say, for at least two reasons.

For starters, the particular election issue at stake isn't "ripe," meaning that there isn't a body of conflicting lower-court decisions on similar disputes. And justices would likely be far more hesitant to insert themselves in a U.S. Senate race than in an unresolved presidential contest that could potentially have left the nation without a duly elected leader on Inauguration Day.

However, no matter how remote his chances for success, a Coleman request for high court review could serve to delay for months the seating of a second Minnesota senator, Hasen says.

Unless it's an emergency, the court does not consider petitions during its summer break, from the end of June to the beginning of October. GOP Senate leaders have threatened to block any attempt to seat Franken if he's declared the winner by state courts, pending any ongoing appeal by Coleman.

That would mean that the Coleman-Franken race would just add to its existing record as the longest undecided statewide race in Minnesota history.

"People can differ at what point finality is finality," Foley says. "But somebody has to lose this election."

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