Franken vs. Coleman: The Final Round — Maybe

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(L to R) Paul Sancya / AP ; Cory Ryan / Getty

Norm Coleman, left, and Al Franken

Here's the running tally so far in the seemingly endless battle between Democratic challenger Al Franken and Republican incumbent Norm Coleman over Minnesota's still unfilled U.S. Senate seat: nearly 3 million votes cast, one recount, two court appeals, seven months, 10 judges, 142 witnesses, $13 million in legal fees and 19,181 pages of filings stacked in binders reaching over 21 feet. But in reality, for all parties concerned, the prospect of cementing or blocking a 60-vote majority for the Democrats in the Senate appears to be priceless.

That much was clear on Monday, as the Minnesota Supreme Court heard an hour of oral arguments on Coleman's second appeal of a statewide recount that took away his initial lead of 215 votes and handed the advantage to Franken. The January recount had given Franken a 225-vote lead, and a three-judge panel expanded that lead to 312 votes in March, deciding Coleman's first appeal in Franken's favor. No one knows when the state's supreme court will issue its decision on Coleman's second appeal, but legal experts say it should be fairly soon after Monday's arguments, which came nearly three weeks after the supporting briefs were filed. (See the top 10 actors turned politicians.)

The balance of power in Washington hangs on the decision — or so both national parties would like people to believe. Since Senator Arlen Specter switched sides in April, Democrats have controlled 59 seats in the Senate. One more would give them a theoretically filibuster-proof majority — a possibility that has helped both sides raise money in recent weeks. "The stakes have never been this high," Coleman wrote in his last fundraising plea. "Our ability to overturn this flawed recount process — and preserve checks and balances against the near total control of our government by Obama and the Democrats — rests in your hands." Likewise, the liberal group in April started a "Dollar a Day to Make Norm Go Away" fund. "We're just one Senator short of 60 — enough votes to keep Republicans from blocking President Obama's progressive agenda," the group's letter said.

With the stakes apparently that high, there is no guarantee that the next state supreme court ruling will end the saga. A unanimous decision in Franken's favor, especially one with instructions to Republican Governor Tim Pawlenty to certify the results so that Franken could take his seat on Capitol Hill, would be very hard for Coleman to overcome. Pawlenty has said that under such an order, he would have little choice but to sign the certification, but Coleman has made no promise that he wouldn't try to appeal to the highest court in the land. "The only caveat would be if the U.S. Supreme Court ordered cert and issued a stay in a certificate, which I find highly implausible — it would enrage the Senate and appear blatantly political," says Norm Ornstein, a scholar at the conservative American Enterprise Institute. Everything about the Franken-Coleman battle, of course, is blatantly political, but under this scenario, the U.S. Supreme Court would have to overcome its preference for staying out of state disputes and take up the case in its current session — a rare but not unheard of move (see Bush v. Gore, 2000).

A ruling in favor of Franken without a certification order would leave Coleman more room to either appeal to the Supreme Court's October session or to start a new case in federal court — both processes that would take months to run their course. Some GOP Senators, including Senate minority leader Mitch McConnell, have encouraged Coleman to push ahead no matter what the decision. But such a move, particularly in federal court, might also backfire, warns Don Kettl, dean of the University of Maryland's School of Public Policy. "It's unclear what case Coleman could make that he hasn't already put forward, so it would risk looking like a quest for delay instead of a search for fairness," Kettl says. "He has little to gain in a suit with few chances of success and little but criticism as a result."

A decision in Coleman's favor would send the case back to lower courts to reinterpret the standard for including absentee ballots. "The trial and appeal were based on the fact that different counties counted the ballots differently," Ben Ginsberg, a lawyer for Coleman who also represented George W. Bush in the 2000 Florida recount, tells TIME. "Whether or not a voter's vote counts shouldn't depend on where they live." (See the top 10 unfortunate political one-liners.)

The judges' tone on Monday seemed to favor Franken, as it was Coleman's lawyers who endured much of the tough questioning. Interrupting another Coleman attorney, Joe Friedberg, just one minute into his remarks, Justice Christopher Dietzen (a Pawlenty appointee) said Friedberg's argument that there were enough problems to make a difference in the outcome of the election had "no concrete evidence to back it up." He added, "In my experience, I've never seen an offer of proof like this."

Progressive groups are calling on Senate majority leader Harry Reid to seat Franken provisionally no matter the outcome of the Minnesota Supreme Court's decision, a move that would likely provoke a GOP filibuster. Reid thus far has taken a wait-and-see approach, though his patience is wearing thin. "The time for do-overs is over," says Jim Manley, a Reid senior adviser. "Now is the time — now more than ever — for Norm Coleman and Washington Republicans to stop once and for all their ongoing effort to block President Obama's agenda."

Virtually anything other than a decision in Coleman's favor could make it more difficult to convince donors to continue bankrolling his increasingly slim chances. The National Republican Senatorial Committee last month gave Coleman $750,000, but in this tight economy, any money it gives to Coleman takes away from defending seats opening up by retirements in tough states like Ohio, Florida, Missouri and New Hampshire. And after all, continuing to pour money into a losing candidate — even if it gains you a few more months of minority power in the Senate — isn't exactly priceless.

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