Norm Coleman, left, and Al Franken
When Minnesota's Senate-recount trial began in January, the state's lone U.S. Senator, Democrat Amy Klobuchar, made a prediction: either Republican incumbent Norm Coleman or Democratic challenger Al Franken would be seated as Minnesota's next Senator by April 11, the day the ice is expected to melt on Lake Minnetonka, a large lake outside the Twin Cities. But after the two campaigns have spent 30 painstaking days in court, Klobuchar is starting to have her doubts. "Pretty soon I'm going to say when the ice melts on the Arctic," she says. (Read "Minnesota, This Is Your Senator.")
If the Senator is frustrated, imagine how her constituents must feel. For four months, they have watched high-powered Washington attorneys question the legitimacy of the state's esteemed election process, using dizzying legal arguments and statistical gymnastics. Coleman has even suggested that an entirely new election might have to be held.
Moreover, both candidates have done about-faces in strategy and rhetoric. When Franken was behind in the recount, his counsel argued that they wanted every legally cast ballot counted. But with Franken in the lead, they have taken a decidedly less sweeping position. When Coleman had the slim lead immediately after the election, he declared that if he were Franken, he "would step back" and concede defeat for the good of Minnesota. And during the recount, Coleman's lawyers vehemently argued against the inclusion of the same absentee ballots upon which Coleman's case now relies. "In a way, I think [Coleman] has lied to the state of Minnesota," says Colleen Lacey, 38, a human-resources director from Chaska and self-described Republican who voted for Coleman. "I'm really disappointed that it's gone this far."
And all signs are that it's got even further to go. On Friday, Minnesota's highest court refused Franken's request that Governor Tim Pawlenty and secretary of state Mark Ritchie be forced to award him the coveted election certificate, which, according to Senate rules, is necessary to seat a candidate. The ruling virtually ensures that the legal wrangling will continue for several more weeks and — if Coleman chooses to appeal the case, possibly to federal courts — perhaps even months.
After Minnesota's canvassing board certified Franken the winner of the state's protracted race by 225 votes in early January, Coleman filed an election contest on grounds that flaws in the state's election system were so widespread that they cost him the Senate seat. In the weeks that followed, Coleman's legal counsel has subpoenaed dozens of Minnesota voters and election officials to testify before a three-judge panel about irregularities in the state's vote-tallying process.
The cornerstone of Coleman's case was roughly 4,800 absentee ballots his lawyers say election officials improperly rejected. But a mid-February order from the panel severely limited the categories of absentee ballots it would consider — and, in the process, dealt a serious blow to Coleman's chances of winning the contest. When Coleman rested his case last Monday, he was arguing for the court to examine fewer than 2,000 absentee ballots. In his closing argument, Coleman's attorney Jim Langdon argued the election was so rife with error that the panel might not be able to declare a winner.
Franken's counsel thought otherwise. On Friday, the panel heard arguments about a request from Franken to dismiss the case altogether because, they argued, Coleman failed to prove that there were enough improperly rejected ballots to close Franken's 225-vote margin. The court is expected to rule on that motion soon. In the meantime, Franken's team has been trying to prove that flaws in the state's election system were the exception, not the rule. He is also attempting to get about 800 absentee ballots tossed into the final tally, most of which are from counties he won on Election Day.
Election-law experts say that Coleman has been laying the groundwork for an appeal ever since that mid-February ruling. Indeed, it's not rare these days to hear Coleman's attorneys claim the ruling violated the equal-protections clause of the U.S. Constitution. "The court has given him very narrow opportunity for establishing proof or establishing evidence as to what ballots are going be counted," notes David Schultz, a professor at Hamline University and the University of Minnesota who is an expert in election law. "It still leaves the court with what looks like an inconsistency. But that may be an issue for an appeal." If the loser appeals to Minnesota's Supreme Court, Schultz adds, the state may have only one Senator until mid-July.
As frustrated as they appear to be with the court case, Minnesotans aren't all desperate to have someone go to Washington right away. A recent Rasmussen poll of 500 Minnesotans found that about 46% supported conducting another election altogether. "I think that since this issue landed in front of a panel of three judges, it has become increasingly clumsy," says James Crockarell, a Coleman voter. "The election is now in the hands of the court and out of the hands of the people. The fairest thing that speaks to the people is to have a new election."
Nevertheless, election experts say no legal precedent or basis exists for a re-vote in Minnesota law. (A re-vote was conducted in a 1974 New Hampshire U.S. Senate race, but the margin was just two votes.) Besides, as the state retrenches in the face of a $4.5 billion deficit, another election would be costly. Secretary of state Ritchie, a Democrat, says it would cost the state between $3.5 million and $5 million. "It's pure fantasy, pure baloney," he says.
Tellingly, both sides appear to be girding for more legal battles. Franken attorney Marc Elias recently sent a letter to the Federal Election Commission requesting an expedited advisory opinion about whether the Democratic Senatorial Campaign Committee can set up two recount funds on Franken's behalf; Coleman's campaign says it agrees with the request. Meanwhile, dozens of GOP leaders solicited donations for Coleman's recount fund via YouTube in late February.
That only fuels the suspicion, voiced by Franken, that the GOP wants to drag out Coleman's legal battle as long as it can to delay the Democrats from gaining another vote in the Senate, which would bring them even closer to a filibuster-proof 60-vote majority. "They're willing to let Minnesota have one Senator in order to delay my getting there," Franken recently told the Associated Press. For his part, Coleman has said he is "not in this to prolong it" but "to get it right" — though his decision to attend meetings with his former GOP colleagues in the Senate has struck some observers as presumptuous.
William Beyer, 98, an Inver Grove Heights retiree, has his own solution to the electoral circus. "Let Coleman and [Franken] take a nice gold coin and flip it in the air," he says. "I don't know why they are monkeying around. They're never going to find out all the correct ballots." That may seem like an absurd idea. But in fact, Minnesota law provides that the state could resort to a coin flip if both candidates are tied. That happened in a 2008 race for mayor of Goodridge, a northern town here with a population of 98, after each candidate received 22 votes. At this point, it's an option Minnesotans would probably welcome; after all, once the coin is flipped, there would be no room for argument.