The battle over Minnesota’s U.S. Senate seat may be over now that the state Supreme Court has ruled in favor of Democrat Al Franken and Republican Norm Coleman has conceded, but the sting of controversy has not lifted entirely from the field.
Minnesota’s Supreme Court dismissed former Sen. Norm Coleman’s challenge to the state’s November election results and declared Democratic challenger Al Franken the winner, declaring in an unsigned opinion only that Franken “received the highest number of votes legally cast” and is entitled “to receive the certificate of election as United States senator from the state of Minnesota.”
But attorney Michael Thielen, who has served as the Republican National Lawyers Association’s executive director since late 2000, has joined the ranks of Minnesota watchers whose take on the historic holdover election is much more emotive than that of the judiciary.
Thielen, who worked for the Republican National Committee from 1994 through the 1996 election, told Newsmax that “Norm Coleman’s remarks were extremely gracious in congratulating Franken.”
But when Newsmax asked Thielsen to what Franken owed his victory, the counselor’s ruling was certainly less straightforward and much more heated than the court’s.
“He owes his victory to being selected by a Secretary of State instead of being chosen by the voters,” blasted Theilen.
“The real question of what legitimate meant was never properly addressed,” he added. “The answer was different depending on what county you voted in. It’s undisputed that a ‘legit vote’ vote in a Franken county very well could have been a illegitimate vote in a Coleman county.”
Thielen, who after leaving the RNC, went to work for candidates for elected office in Virginia, was just as volatile in his response when asked if Franken’s victory was seen as even more relevant to the power balance since he could make the Senate “filibuster proof.”
Thielen replied, “As long as President Obama pursues policies that majority of the American people disagree with, he will find it difficult to secure 60 votes in the U.S. Senate with or without Al Franken.”
So, where did Coleman go wrong?
Thielen surprised Newsmax with his take: “Coleman was defeated in November 2006 when the George Soros-backed Secretary of State Project poured money into [replacing] a competent secretary of state with an inexperienced political hack.”
“This political hack, Mark Ritchie,” he adds, “disenfranchised military voters, treated people differently based on the county they lived, and even ignored the attorney general’s opinion of absentee ballots all in his effort to deliver the Senate seat to Franken.”
The ruling brings an end to seven months of challenges by Coleman.
The former “Saturday Night Live” writer and performer Franken had declared victory in the disputed race after a recount ended in January, but Coleman, a Republican who had been seeking a second six-year term, went to court to challenge those results.
Coleman led Franken on election night by a margin of 206 votes out of more than 2.9 million cast. The margin was narrow enough to trigger a recount, however, and that process ended in January with Franken leading by 225 votes.
Several experts and observers are now slamming how Coleman’s lawyers handled his marathon election contest, arguing they’ve given him almost no chance of prevailing over Democratic opponent Al Franken.
“…I’ve never seen an offer of proof like this,” state Supreme Court Justice Paul Anderson remarked testily to Coleman lead attorney Joe Friedberg during the oral arguments presented June 1.
“It seems like you’re offering little more than an opening statement of, in this case, Coleman’s theory of the case, but no concrete evidence to back it up,” Justice Christopher Dietzen told Friedberg.
Dietzen later added: “I’m very bothered by your [lack of] proof.”
After these exchanges, several legal scholars told Newsmax that a unanimous ruling for Franken would not be surprising. And if that happens — as indeed it has — they suggested the fault may lie not with Coleman’s politics but rather with his attorneys.
Coleman essentially contended Minnesota election officials applied different standards to different ballots to decide which ones were valid. The justices appeared taken aback by the dearth of evidence Coleman’s attorneys presented to support that claim, however.
“If the Minnesota Supreme Court rules for Franken, it would be wrong to jump to the conclusion that the court inevitably must be biased against Coleman,” law professor Edward B. Foley, one of the country’s leading experts on elections, wrote in an online post following the oral arguments.
Foley commented on the Ohio State-Moritz School of Law Web site: “. . . In the end, impartial jurists reasonably might conclude that Franken has the better case on the merits. Or, alternatively, the conclusion might be that Coleman’s attorneys failed to put before the court a winning case that perhaps, with a different strategy, they could have made.”
If Coleman loses due to a lack of evidence being presented, the second-guessing will begin en masse. “. . . The inevitable question will arise,” Foley writes. “Why did Coleman’s lawyers fail to take the necessary steps? Was it a lack of money, or a strategic decision not to spend it? Or some other explanation?”
David Schultz, an author and professor of election law at Hamline University, says Coleman was simply “out-lawyered.”
Among the specific criticisms Schultz shared with Newsmax: During the initial recount, Coleman’s motions to halt the counting of additional ballots were deficient. “Politically and legally they were not making good arguments,” Schultz says. After the recount ended, Coleman’s team failed to provide the three-judge election panel with specific examples supporting Coleman’s claim of voting irregularities. “For example,” Schultz states, “the Coleman campaign tried to argue that because some apparently invalid absentee ballots were accepted by the local election boards, another 4,500 ballots that were rejected should also now be introduced.
“The court said . . . claims about those previous ballots are no reason to accept clearly illegal ballots now, especially when the Coleman lawyers could not prove that the ballots they claimed were illegal, were in fact illegal.”
The Coleman team produced images of apparently invalid ballots that local election officials had counted, to support the argument that officials had been inconsistent. But Franken attorney Marc Elias responded that images alone could not establish a ballot’s validity. Each ballot, he told justices, “tells a story.”
Election officials who accepted contested ballots might have made common-sense exceptions, he said. If so, it would suggest mere images of ballots are insufficient to establish whether a ballot is valid.
At one point, Minnesota Supreme Court Justice Paul H. Anderson asked Friedberg if voter fraud had occurred during the election. Friedberg replied there was none. Says Schultz: “This was a fatal admission by Friedberg that may have cost him the case.”
Some observers were surprised that Coleman attorney Ben Ginsberg — a nationally prominent lawyer who led GOP legal efforts in the successful Bush v. Gore U.S. Supreme Court case in 2000 — watched from the sidelines during much of the contest.
Ginsberg spoke to reporters during the contest, and offered strong praise for Friedberg’s performance in oral arguments. He said the state’s Supreme Court justices “asked the tough probing questions they needed to ask from both sides.”
Three of the five justices that heard the case were appointed by Republican governors. A fourth justice was appointed by Gov. Jesse Ventura, an Independent. And the fifth justice, Alan Page, owes his presence on the bench to no party. Page won election to his position.
When Friedberg, a respected Minnesota trial lawyer known for successfully representing defendants charged with high-profile, white-collar crimes, joined the election lawsuit in mid-January, he openly confessed his lack of election-litigation experience.
“Norm called me on the phone and said, ‘Would you consider trying the recount case in front of the three-judge panel?’“ Friedberg told the Minneapolis Star-Tribune. “I said, ‘I don’t know my election law and it looks like you’ve got about 100 lawyers.’ But the answer was that very few of them are trial lawyers.”
Despite Friedberg’s presumed learning curve, Rich Hasen, a Loyola Law School law professor, says that the notion Coleman’s attorneys have been “outlawyered” is wrong.
“The Coleman legal team did the best they can with what they had to work with,” Hasen tells Newsmax. “It turns out that Minnesota’s election administration is among the best in the country, and the legal standards set forth in Minnesota for the counting of absentee ballots did not give Coleman’s team much room to make strong legal arguments. If Coleman loses, I would not blame the lawyers.”
So how does Hasen account for Franken’s current advantage of 312 votes out of close to 3 million ballots cast?
“Franken was lucky,” Hasen says, “and Coleman was unlucky.”
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