Deliberations of the three-judge panel hearing Minnesota’s marathon election dispute between GOP Sen. Norm Coleman and Democrat Al Franken have now taken longer than Franken spent presenting his entire case, leading to growing restlessness and mounting questions about the delay.
“What's taking so long? Any bets on whether the ruling will be announced by Friday afternoon?” asked a recent post on TalkingPointsMemo.com.
One theory contends the panel is carefully reviewing the Coleman legal team’s argument that different legal standards were applied to different ballots, violating voters’ rights to equal protection under the law. This objection would likely form the basis for a Coleman appeal to the Minnesota Supreme Court if he loses.
Another view holds that the panel is simply being especially thorough in reviewing records to ensure every legitimate ballot is counted.
Political scientists say the ongoing election dispute may soon exact a political price on the participants, as Minnesota voters weary of having only one political representative in the U.S. Senate.
"It's either win or oblivion," said Hamline University Prof. David Schultz tells StarTribune.com. "Whoever loses is viewed as the obstructionist, the person who held up Minnesota seating a senator."
University of Minnesota political scientist Lawrence Jacobs tells StarTribune.com that Coleman could reach a point where his persistence begins to hurt his chances for a rumored race to become the state’s next governor. That assumes of course that he is unable to overtake Franken’s lead in the Senate race, which officially stands at 225 ballots.
"The longer he stays in and fights, it diminishes his chances of running for governor, which seems like a real possibility," Jacobs said. "In some people's eyes there's just irritation that this has gone on. That's not necessarily fair. Norm Coleman's decision to [pursue his election contest] is entirely legitimate and appropriate.
"But for independent voters and voters who don't follow things very closely, the recount and now the contested election has eroded his support," said Jacobs.
The legal issues confronting the panel of jurists are daunting. Among them: About 250 absentee ballots that Franken says should have been counted weren’t. Another 150 ballots should be considered for tabulation, his lawyers contend. Franken has filed a motion that Coleman’s case be dismissed due to lack of evidence. The panel has yet to rule on it.The Coleman team has asserted that different counties used different standards to decide which absentee ballots to count. It says the election result is so inconclusive that a “do-over” election might be required.Some 132 ballots have gone missing in Minneapolis. Coleman says those votes should not be counted. “An accurate vote cannot include phantom ballots,” Coleman’s attorneys stated in a memo as his legal team rested their case, adding, “A recount must count ballots that are actually there — otherwise it’s a ‘re-guess’ rather than a ‘recount.’” Coleman’s team has asked that an additional 1,359 rejected absentee ballots be counted. Franken claims only six of those ballots are legally qualified to be counted. Prior ruling by the panel suggest only a fraction of those ballots will be included. Coleman contends that as many as 25 precincts counted ballots for Franken twice. The votes in those precincts should be recounted, Coleman’s attorneys say, so the number of votes matches the number of voters who showed up to cast ballots on Election Day.
Sarah Cherry, an independent observer who has been monitoring the election contest for Ohio State University’s Moritz School of Law, tells Newsmax that part of the delay may stem in part from the judges’ search for ways to insulate their rulings from appellate review.
“I am not surprised by the time it is taking for the court to rule,” Cherry says. “This is a very important decision and I’m sure they want to get it right and try to make it as appeal-proof as possible.”
Cherry tells Newsmax the judges’ prior rulings suggest “they believe strict compliance with the absentee ballot laws is required for a vote to be valid. That would make it very difficult for them to order the counting of ballots that do not strictly comply, in the name of giving ballots the exact same treatment.”
As the case drags on, one person who does not appear unnerved by the wait is Democratic challenger Franken.
Franken is leaving Minnesota to appear with actress Renee Zellweger on Wednesday night at the USO’s annual black-tie awards dinner in the Nation’s Capital.
The USO ceremony will honor 36 of the nation’s 98 living Medal of Honor recipients. Franken will receive the organization’s Merit Award for his volunteer work visiting U.S. soldiers.
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