Strictly from a legal standpoint, the Republican party's desperate attempt to keep Al Franken out of the U.S. Senate, and thus deny the Democrats their 59th seat, appears to be virtually doomed. After being thrashed earlier this week in a Minnesota court ruling, Republican incumbent Norm Coleman's victory odds, via the judicial route, are now roughly akin to the odds of Lindsay Lohan entering a nunnery.
At some point, the Republicans may have to face the music and admit that it's a waste of time to keep wasting money. But Coleman and the GOP aren't there yet; they will first need to hit bottom. Actually, their persistence is understandable; it's not as if the Republicans have much else going for them these days. (Indeed, today they are focused on the faux grassroots "tea party" "movement," bankrolled in part by corporate lobbyists, which purports to protest high government taxes...at a time when 95 percent of Americans are getting tax cuts). So, given the paucity of credible GOP projects, why not just keep waging a scorched-earth legal battle despite the ever-lengthening odds?
At this point - Minnesota has now gone more than 100 days without two senators - it's not a matter of whether Franken will become the 59th Democratic senator; rather, it's apperars to be only a matter of when. To appreciate why this is so, let's play out the judicial process, starting with the strongly-worded smackdown of the GOP that was handed down late Monday.
Coleman lost a statewide hand recount that was supervised by a bipartisan canvassing board. He then lost a seven-week trial that was supervised by a bipartisan three-judge panel. He basically claimed during the trial that the tallying of absentee ballots was unfair and erroneous; that Minnesota election officials violated the U.S. Constitution's equal protection clause by using a variety of standards to accept and reject those absentee ballots. To buttress his case, he cited that famous 2000 case, Bush v. Gore. (You knew that one was coming.) But the three judges, in their Monday ruling, blew Coleman out of the water on all counts.
The judges wrote that Coleman had produced "no evidence of a systemic problem of (voter) disenfranchisement in the state's election system," that Coleman had failed to provide any "allegation or evidence of fraud or foul play." The judges had allowed the counting of several hundred more absentee ballots (after which Coleman was even further behind), but ruled that Coleman's attempt to introduce thousands of illegal absentee ballots would have violated state election law. And in conclusion, the three judges minced no words:
"The overwhelming weight of the evidence indicates that the Nov. 4, 2008 election was conducted fairly, impartially, and accurately." They ruled that Franken "received the highest number of votes legally cast" and "is therefore entitled to receive the (state) certificate of election."
Prominent election-law experts have already suggested that Coleman pack it in. Richard Hasen, a Loyola Law School professor and election-law blogger, characterizes the Minnesota ruling's "findings of fact and conclusions of law" as "reasonable and conservative...the kind of opinion that is unlikely to be disturbed on appeal by either the Minnesota Supreme Court or the U.S. Supreme Court."
But his assessment seems tame, when matched against the verdict of Guy-Uriel Charles, an election-law expert at the University of Minnesota Law School: "Unfortunately for Coleman, his (legal) prospects always depended upon a miracle...A good lawyer should know when further litigation is fruitless, and a good politician should abide by the same guiding principle."
Charles' argument was seconded yesterday by a Republican strategist who dished to a Capitol Hill newspaper: "(Coleman) is cooked. At this point, continuing to carry on only damages his brand for future bids for office.” And a new survey, conducted by Public Policy Polling, reports that 63 percent of Minnesotans (and 61 percent of swing-voting independents) want Coleman to give it up.
Coleman's prospects for a court victory appear fruitless in part because appeals courts rarely agree to hear election-law cases, much less overturn the lower court rulings. Appeals judges tend to overturn only when there are egregious constitutional issues (such as racism) or flagrant partisan biases. There were no such biases in the Franken-Coleman election dispute.
The three-judge panel, which ruled against Coleman unanimously, is comprised of one Democratic appointee, one Republican appointee, and one Independent appointee. The state canvassing board that supervised the statewide hand recount was comprised of two Republican appointees, one Democratic appointee, one Independent appointee, and one member who had been elected in a non-partisan election....in other words, in the fairness tradition of "Minnesota nice."
So, for starters, it's hard to imagine the Minnesota Supreme Court overturning the three-judge decision. Coleman is appealing anyway, but here's a further complication for him: Two of the Republican high court appointees will not be participating. They've recused themselves - because they were the two Republicans who helped supervise the statewide hand recount. Which Franken won.
So let's assume (wisely, in all probability) that the Minnesota Supremes, in the next month or so, deal Coleman yet another defeat. He's still threatening to take his case directly to the U.S. Supreme Court, hoping that the equal-protection argument from Bush v. Gore will help him prompt the federal Supremes to invalidate the state voting procedures.
But here's his problem: Ever since the highest court dragged George W. Bush across the finish line on Dec. 12, 2000, it has never once applied Bush v. Gore to any other case. That's because the Bush case dealt with very specific circumstances - varying standards that determine the validity of punch-card ballots - and, more importantly, that's because the judges themselves don't want to apply Bush v. Gore to any other case.
When ruling for Bush, they said so themselves: "Our consideration is limited to the present circumstances..."
You know how the Republicans always claim they want "strict constructionist" judges who will respect precedent and hew to the literal meaning of words? Well, the literal meaning of Bush v. Gore is that it can't be applied to any other cases:
Our. consideration. is. limited. to. the. present. circumstances.
Which is why the federal Supremes haven't applied Bush v. Gore to any other circumstances. It is Coleman who would be seeking a broad and liberal interpretation, in violation of alleged Republican principles, thus exposing the hypocrisy of his last-ditch mission. And even if he goes this route - or takes the even more extreme option of filing a whole new lawsuit in the lower federal courts - it's highly likely that the Minnesota Supreme Court will have already instructed the governor to sign Franken's victory certificate.
Bottom line: Coleman is a well-done sirloin awaiting the proverbial fork. If not for the financial/legal efforts of his party to delay the seemingly inevitable, he couldn't be more cooked.