MN-Sen: Where Things Stand

The legal teams have made their closing arguments and the trial has concluded as the three-judge panel will now deliberate for, likely, a period of weeks to determine who won the 2008 U.S. Senate race in Minnesota.  Via Minnesota Public Radio, you can listen online to the closing arguments of both the Franken legal team and the Coleman legal team.  When will a decision be handed down?  Talking Points Memo asked a Minnesota election law expert:

Hamline University professor David Schultz tells TPM that he now expects the court to probably rule at some point in the first week of April, with a declaration that Al Franken is the winner.

After the three-judge panel, what will happen next?  There are a couple of possibilities as to how things might (or might not) proceed.  In my analysis, I operate under two assumptions:

A) Norm Coleman is a loser and Washington Republicans know it.  Wait, huh?  If the D.C. Republican establishment know that Coleman is a loser, why do they bother supporting him?  Ultimately, for Republican leadership, an empty seat is as good as a Coleman win.  Why?  The Senate GOP's only weapon is the filibuster.  Whether there are 99 seated Senators or 100 seated Senators, Democrats need 60 votes for cloture.  Therefore, a prolonged legal battle keeping the seat empty is as good as a Coleman win.

(Much more below the fold.)

B) Norm Coleman is just about out of money and relies entirely on that Washington Republican establishment to fund his legal battle at this point.  Norm Coleman is not personally wealthy, as evidenced by his extremely frequent refinancing of his own home, treating his mortgage like an ATM.  Coleman has not only had to contend with the cost of a campaign in overtime, but also the legal bills associated with lawyering up in the case of his political benefactor allegedly funnelling money to his wife's company.  Further, Coleman now faces a possible legal battle over whether his campaign broke the law when they did not inform Coleman donors of the possible breach in online security (due to the Coleman team's own incompetence).  As long as it fulfills the national Republicans' whims to prolong the legal battle and keep the seat empty, they will fund it.  Once it's a done deal and Franken must be seated, the money faucet can be shut down awfully quick.  (And I don't think Coleman will be able to generate much new grassroots Minnesota fundraising after the aforementioned donor security breach scandal in which the Coleman camp put its ability to fundraise ahead of the financial security of its donors.)

So, after accepting those assumptions, what might happen next?

1) Norm Coleman could accept defeat.  If that's what happened, then the three-judge panel's decision, around the first week of April, would be it; and, Senator-elect Al Franken would be seated and referred to simply as Senator Al Franken.

2) Norm Coleman could appeal the decision.  The appeal would very likely get fast-tracked before the state Supreme Court.  Such an appeal would take an estimated two months.  There is one big reason why this might not happen:

Schultz poses a very interesting scenario, one that could bring the entire appeals process to a crashing halt and force the granting of a certificate of election.

The election-contest proceeding operates under a loser-pays system -- so if Coleman loses, his campaign committee would have to pay all the legal costs of Team Franken. Those numbers aren't publicly available, but Schultz estimates it at anywhere between $1-3 million.

And it's also normal procedure in such civil cases, Schultz explains, for a losing party that appeals to then be served a court order requiring them to place in escrow the amount for which they are currently liable. So if Franken's lawyers are smart people -- and nobody would doubt that they are -- Schultz sees it as very likely that they would seek to force Coleman's committee to procure millions of dollars up front just so they could start an appeal.

Coleman (read: the NRSC and RNC) would have to put up millions of dollars in advance just to have the appeal heard.  The question then becomes: Is it worth it to the Washington Republican establishment to dump a couple million bucks in exchange for a Franken-less Senate for an extra two months?  My guess is that they'll decide against such an "investment," but it won't shock me if Republicans pony up the cash either.

3) Norm Coleman, upon losing his state Supreme Court appeal, could further appeal to the U.S. Supreme Court, claiming that the equal protection clause of the U.S. Constitution was violated.  Of course, Coleman would still have to depend on D.C. GOP big bucks to fund his continued legal challenge.  Now, here's why this might not happen.  While an election certificate can't be issued while state-level appeals are underway, some interpretations of the standard suggest that an election certificate can be issues once state-level appeals have been attended to, even if appeals are ongoing in a federal court:

Specifically, the justices, writing unanimously, apparently tipped their hand on on how they will rule on the question of whether Franken will be entitled to a certificate if Norm Coleman tries to keep the case going in a federal court or in the U.S. Supreme Court. The Minnesota Supremes apparently indicated that, under that scenario, Franken gets his certificate when the state process is done, even if it's still alive in federal court. ...

In writing the ruling, the state Supremes described the statute on certificates as providing that "a certificate of election cannot be issued until the state courts have finally decided an election contest."

If we further assume that this interpretation is accurate, and Senator-elect Franken receives his election certificate after the state Supreme Court appeal is heard and dismissed - and is, therefore, seated in the U.S. Senate - Republican leadership loses its incentive to prolong the legal battle and stops funding Coleman's legal team.  As such, Coleman simply can't afford to move forward (though it is irrelevant if he did because he lost), and we have a seated Senator Franken.

So which of the three will happen?  We probably won't know that any sooner than we know the three-judge panel's decision.  What we do know is that Coleman's prolonging of the case any further is dependent on D.C. GOP money; and, we should expect Coleman to be working the phones for the next few weeks to the NRSC, RNC, and fellow Senators explaining why his appeal would be a good investment.

For daily news and updates on the U.S. Senate races around the country, regularly read Senate Guru.

Tags: 2008, Al Franken, Election, MN-Sen, norm coleman, recount, Senate (all tags)

Comments

12 Comments

Re: MN-Sen: Where Things Stand

Thanks for this but I am still stunned by "a period of weeks" time frame.

by Charles Lemos 2009-03-13 08:14PM | 0 recs
I suggest another scenario

GOP Senators will use as many parliamentary tricks as possible to prevent Dems from seating Franken until the last one is exhausted. They have the chutzpah and, unlike Democrats, they'll try to win all the way to the bitter end. As much as I despise their politics, I have to admire their resolve. I'd like to see it on our side for a change.

by Spiffarino 2009-03-13 08:35PM | 0 recs
Re: I suggest another scenario

You have....in Al Franken!

by lojasmo 2009-03-14 02:06AM | 0 recs
Re: I suggest another scenario

Oh! How could I forget...you're so right!

by Spiffarino 2009-03-23 09:38PM | 0 recs
If Coleman appeals

and has to put the money up front to do this, at least Franken will get all his legal fees paid for because we all know in the end that Coleman will lose his appeal.

The question is really is it worth 3 million dollars for the GOP in keeping Franken out of the Senate for a few more months?

That is the question they are weighing right now.

The next few months the votes will be about the budget which only requires 50 votes to pass in the Senate and perhaps the Energy bill.

Health care vote won't happen until the Fall.

by puma 2009-03-13 08:42PM | 0 recs
Re: If Coleman appeals

That truly is the question, puma: Is it worth $3mil to the GOP to keep up the fight? Let us hope so. It's $3mil less for the Reich wing to do their dirty work. And, as loss follows loss, big money donors to the GOP will dwindle. Sure, the usual crazed ideologues will always be there, but the smart money will split for greener pastures.

by Spiffarino 2009-03-13 08:57PM | 0 recs
Dang. I almost forgot to add...

That was an excellent synopsis, Senate Guru. Thanks for keeping us well-informed.

by Spiffarino 2009-03-13 09:00PM | 0 recs
Re: MN-Sen: Where Things Stand

Sounds like it will be over in April.

by bruh3 2009-03-13 09:49PM | 0 recs
Re: MN-Sen: Where Things Stand

Guru you are being way too pessimistic.

Schultz has been wrong more then right throughout this whole process.

I urge everyone to watch the last two pressers over at the uptake.org to see Norm. Norm gave statements on both days. Thursday on the database leak he sounded wounded and pensive, he knew the campaign had screwed up and you could see that it was more then just the database. Friday he seemed calmer and gracious, my first impression was of a man who had finally faced reality.

Norm is a skilled politician in the political opportunist sense. He knows that unless a miracle happens Franken will come out of the next couple of weeks with a larger lead. Looking at his remaining 1360 and just assuming the votes mirror the election he can expect to gain at best 125. That ignores the pre-election polls that had Franken winning absentees by 8-9% (or the results of the 933 from Jan. 5th). To counter that Franken has a solid additional 300 votes to count of which he will probably net 200. With an increased lead and the fact that Minnesota Law is totally against him, an appeal to the MnSC while possible gains him nothing.

But, accepting the results of the ECC would allow him to limit the damage to his image with the more moderate voting public in Mn. It would allow governor T-Paw to avoid an awkward decision about signing the certificate keeping his (T-Paw's) future unsullied. It also allows the national party to posture without consequence.

So here is what I expect will happen.

The ECC has and is right now trying to figure out a way to get nearly as many Coleman ballots opened as Franken Ballots. They will do this by asking the SoS to fill in some of the blanks Coleman left unfilled. Probably centered on registration status of voters and witnesses as the best argument Coleman made was the voter database changed as the case progressed and the Coleman team had no sure way to fill in those blanks. The court will this coming week order that set of ballots (I est. around 800) assembled and counted by the SoS. This process will take around 4 days. Shortly thereafter, I mean days, the Court will rule on all the remaining issues and render its verdict. Two weeks seems just about right.

Coleman will then concede.

Michel Steele will resign a week later.

Coleman will become the new RNC chair.
That last is not as far fetched as you may think. To the CNNs and NBCs of the world he will be the gracious near winner. To the FOXs and the radio crowd he will be the mini-Gore. A fund raising plus, who is wholly owned by the money'ed powers, with a shape shifters persona. Who better?

by Judeling 2009-03-13 11:20PM | 0 recs
Re: MN-Sen: Where Things Stand

Who better?  Almost anybody.  Coleman got beat by a professional wrestler, barely beat Mondale, who had been campaigning for about a week, then got beat by a professional comedian.

At least he's white, though.

by lojasmo 2009-03-14 02:10AM | 0 recs
My expectation

I expect that Coleman will continue his challenges until the RNC runs out of tricks to prevent Franken from getting seated, as all of this has been an RNC-subsidized end-around to keep Reid's stupid cloture rule in play by one more vote.

Coleman's next move, if the Republicans don't give him some sort of big job, will be to run somewhere as a Democrat.  Why not?  He only became a Republican when it was politically expedient; I don't see why he wouldn't switch sides again when Republicans aren't popular anymore.

Norm Coleman cares about Norm Coleman.  

by Dracomicron 2009-03-14 03:31AM | 0 recs
Re: MN-Sen: Where Things Stand

And it's also normal procedure in such civil cases, Schultz explains, for a losing party that appeals to then be served a court order requiring them to place in escrow the amount for which they are currently liable. So if Franken's lawyers are smart people -- and nobody would doubt that they are -- Schultz sees it as very likely that they would seek to force Coleman's committee to procure millions of dollars up front just so they could start an appeal.

Most states allow you to post an appeal bond, which costs less in upfront money than escrowing the entire amount.

by Steve M 2009-03-14 11:40AM | 0 recs

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