Al Franken wins

The Minnesota Supreme Court has issued a unanimous per curiam ruling against Norm Coleman in favor of Al Franken on Coleman’s appeal of the election contest panel decision awarding the election to Franken. The Minnesota Supreme Court expresses no disagreement with Coleman’s contention that absentee ballots were subject to disparate requirements around the state — the heart of Coleman’s appeal — but finds that any disparate treatment was not intentional.

The Canvassing Board (including Chief Justice Eric Magnuson and Associate Justice Barry Anderson), the election contest panel and the Minnesota Supreme Court honorably discharged their respective roles in the post-election proceedings. I strongly disagree with decisions made by each of these bodies, but they performed their jobs admirably under difficult circumstances.

It should be noted, however, that the Minnesota Supreme Court decision gives no guidance to Minnesotans concerned about the prevention of the disparate treatment of absentee ballots in the future. While the decision is not wrong on its own terms, It is complacent in a way that is hard to understand.

In “Minnesota 101” this past April, I provided my take on the transformation of Senator Coleman’s apparent election night win into Franken’s prospective victory. Although the election contest panel decision had not been issued at the time of the column, the writing was on the wall.

I thought the same was true of Coleman’s appeal to the Minnesota Supreme Court, having written here this past April that Senator Coleman had no chance of winning an appeal. It is no surprise that the Minnesota Supreme Court affirmed the election contest panel decision in every relevant respect.

It is easy to second guess Senator Coleman’s decisions in the post-election contest proceedings, but that doesn’t necessarily mean that it’s wrong to do so. He and his team made several avoidable errors in the post-election proceedings. Some were superficial, some critical, some inexplicable.

In my opinion, bringing criminal defense attorney Joe Friedberg in to try the election contest and argue the appeal was a mistake. Whoever thought it was a good idea for Coleman lawyer Ben Ginsberg to criticize the election contest panel in the press while the case was pending before the panel should probably ply his trade elsewhere, as should those advisers on whom Senator Coleman relied for guidance before he immersed himself in the post-election proceedings.

Those who postulate Democratic shenanigans as the cause of Coleman’s difficulties fail to reckon with the December 18 decision of the Minnesota Supreme Court on the inclusion of previously rejected absentee ballots in the recount. The Minnesota Supreme Court held that absentee ballots identified by local officials during the recount as wrongly rejected should be included in the recount subject to agreement of the parties.

The Coleman campaign had argued (correctly, in my view) that previously excluded absentee ballots should not be included in the recount. The Coleman campaign was caught flatfooted by the Minnesota Supreme Court’s December decision. It should not have agreed to the inclusion of a single one of these ballots until it secured some agreement on the uniform treatment of absentee ballots.

Instead, Coleman’s team agreed to the inclusion of 933 of 1,346 previously rejected absentee ballots identified by local officials during the recount as having been improperly rejected. In the election-contest proceedings, incidentally, Coleman claimed that 100 of the 933 absentee ballots to which it agreed should be excluded. One wonders what his attorneys were thinking.

In its December 18 decision, the Minnesota Supreme Court handed Coleman the key to the election. He promptly threw it away. When the absentee ballots were opened and counted at the conclusion of the recount, Franken’s margin climbed from 49 to 225, placing him in a hole from which he could not extricate himself.

Al Franken titled the fictional story of his 2000 presidential campaign Why Not Me? We already know why, and I think he will continue to remind us. He proved a less formidable candidate than I speculated he would be in “Saturday Night Live with Al Franken” in June 2005, but he was just good enough to win a three-candidate race in a strong Democratic year. I saw Franken speak at an off-the-record event this past Sunday evening and asked a Democratic friend whom I greatly respect what he thought of Franken’s remarks. “Weird,” he said, with equal concision and accuracy.

This afternoon Senator Coleman issued a statement of concession, stating in part: “The Supreme Court of Minnesota has spoken and I respect its decision and will abide by the result. It’s time for Minnesota to come together under the leaders it has chosen and move forward. I join all Minnesotans in congratulating our newest United States Senator – Al Franken.”

Senator Coleman has served Minnesota with enormous dedication and skill for many years as an assistant attorney general, mayor of St. Paul and United States Senator. We sincerely regret his loss and wish him well in his future endeavors.

JOHN adds: We are left with the realization that every Republican in a statewide race here in Minnesota starts a few thousand votes in the hole, due to the disparate standards for judging absentee ballots used in Republican-leaning versus Democratic-leaning counties. Of course, that understates the case: the Republican starts out farther behind than that, due to illegal votes that cannot be prevented because of the Democratic Party’s blocking of a photo ID requirement. We have no real idea of the magnitude of this disadvantage.

I have little doubt that Coleman received more legal, properly cast votes than Franken. But the election wasn’t “stolen;” not during the post-election phase, anyway. Elections are a human institution, and as such are imperfect. The process in Minnesota is pretty good, but when an election is basically a tie, minor imperfections loom large.

The moral of the story, I guess, is that Republican counties should loosen their absentee ballot standards; that is to say, quit following the law.

Norm Coleman is an excellent public servant who perhaps was never appreciated as much as he deserved. Democrats despised him for changing parties, while some conservatives were always suspicious of Norm’s pragmatic, get-things-done orientation. One place where he is appreciated, however, is the Senate. Republicans and Democrats alike know Norm as a smart, effective, hard-working legislator.

Some think that Coleman will run for Governor of Minnesota in 2010. He would probably give the Republicans their best shot at the office, but the alternative would be to go to work for a Washington law/lobbying firm. Lobbyists are in unprecedented demand in the age of Obama, and no one is more qualified for that work than Coleman. He could, for the first time in his life, make some serious money. Whatever he chooses to do, we wish Norm and his family happiness and success.


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