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Coleman relies on 'equal protection' argument

U.S. Sen. Norm Coleman, with his wife Laurie, accepts Minnesotans' decision to elect him to a second term the morning of Nov. 5, 2008. However, a statewide recount ended up with Al Franken the winner. Don Davis/Minn. State Capitol Bureau

ST. PAUL - Norm Coleman says a constitutional principle, ensuring all voters are treated equally, drives his continuing U.S. Senate election fight.

The former senator said his appeal to the Minnesota Supreme Court about the 2008 election outcome, which he plans to file Monday afternoon or Tuesday morning, will offer a full airing of his key objection to the recent election trial.

The crux of the appeal, Coleman said, will be that under the U.S. Constitution's equal protection clause, there remain about 4,400 unopened absentee ballots that should be counted because similar ballots from other counties were counted.

"We think we've got a legitimate constitutional argument and believe strongly there are thousands of Minnesotans whose votes should be counted," Coleman said in a Forum Communications interview.

The Republican claims that the way absentee ballots were handled differently across Minnesota is in violation of the U.S. Constitution's mandate that states cannot deny any person "equal protection of the laws."

The equal-protection argument also could be the basis for a federal election lawsuit, but Coleman has not said whether he would continue his legal fight if he loses his state appeal.

The three judges who presided over Coleman's state-court lawsuit - and named Democrat Al Franken the election winner in a Monday ruling -- dismissed his equal-protection argument. They said differences in how county officials reviewed absentee ballots - such as whether they verified voter registration -- do not rise to the level of an equal protection violation.

The judges said there is evidence to support Coleman's claim that election officials made errors when deciding whether to accept some absentee ballots.

"Equal protection, however, cannot be interpreted as raising every error in an election to the level of a constitutional violation," the judges wrote. "Although not ideal, errors occur in every election."

Coleman disagrees.

"We're talking about clear policy choices made by various election officials in counties to apply different standards," he said. "It's an election. They have to have a single standard by which you decide whether a ballot should be admitted or not."

Much like he did early this year when he sued to challenge the statewide recount results, Coleman said his appeal will request that votes from a Franken-leaning Minneapolis precinct where ballots went missing be removed from the tally.

The Republican said he also will argue that votes were counted twice in some precincts, but said those two issues will play small roles in his appeal. The equal protection claim and a complaint that the judges used stricter guidelines for considering absentee ballots than was used on election night are Coleman's key arguments.

Coleman has suffered procedural and legal defeats since the statewide hand recount started last November. He last led the Senate race at the outset of the recount, by 225 votes, but Franken emerged from the recount on top and has padded his lead to 312 votes.

The morning after the Nov. 4 election, when the Republican led, Coleman urged Franken not to take the matter to court. Later, Franken took the lead in a recount of the state's 2.9 million ballots.

Soon after the election, the focus turned to absentee ballots, especially those that were rejected. When Franken was behind, he wanted more of them counted. Once Coleman dropped into second place, he took up the cause to open every ballot possible.

After the judges' ruling, Franken said that it has been three months since Minnesota's second senator was supposed to be sworn in. He urged Coleman not to appeal.

"The sooner I can get to work, the better," Franken told reporters.

Coleman acknowledged it will not be easy to convince Supreme Court justices to reverse decisions made by the three-judge panel.

"Clearly our burden is greater," he said. "Clearly this is an uphill battle for our team. I recognize that."

In preparation for the appeal, Coleman said he has played the role of editor and legal consultant. A former state solicitor general, Coleman is taking an active role in the legal fight.

He spent recent days editing the legal documents that will spell out his arguments and discussing strategy with his election attorneys.

"I participate in the discussion," he said. "I'm fully engaged in this. I read the (three judges') decisions. We have a team of lawyers and I consider myself part of that team."

Coleman could have a legitimate case, said a national election lawyer following Minnesota's Senate race.

"If (Coleman) can demonstrate that voters and their votes in different parts of Minnesota were treated differently in the counting process, that would be a very credible argument," said Jan Baran, a Washington lawyer who has represented the Republican Party in federal election cases.

However, Baran added: "I don't know how convincing their evidence is."

Ballots Coleman wants included come from Republican-leaning precincts, but the ex-senator said he does not know whether those ballots would put him back on top.

"The bottom line is, 'Open the ballots,'" he said. "At that point, let the chips fall where they may."

The appeal comes as state and national Democrats have released broadcast advertisements and statements calling on Coleman to give up, clearing the way for Franken to obtain an election certificate and be seated in the Senate.

Republicans, including the Senate GOP leader, support Coleman's continued legal fight, but he said no one is pressuring him to keep up the fight.

"I'm not getting pressured from my colleagues to prolong this for the sake of prolonging," he said.

That may be the case, but the longer Minnesota's Senate race remains unresolved, the better for Republicans, one observer said. If Franken wins, Senate Democrats gain a 59th vote, one shy of what is needed to block GOP attempts to filibuster. That could make it easier to advance the Obama administration's agenda.

"Republicans appreciate the politics of this," said Jennifer Duffy, a Senate analyst for the Cook Political Report. "They realize they've gotten a small gift by Democrats having (only) 58 seats, and they'll keep that gift as long as they can."