Legal Expert: Minnesota Court Likely To Rule By End of Month -- For Franken
Today's announcement by the Franken campaign -- that they will provisionally rest their case tomorrow -- has likely changed the timeline of the case dramatically, a top election expert in Minnesota tells TPM.
Professor David Schultz, a teacher of election law at Hamline University, was previously predicting that a ruling would take until mid-April at the earliest. But that assumed Team Franken would take 2-3 weeks to make its case, as opposed to the week and two days they'll have actually used. "I would say we could anticipate -- we should anticipate at this point -- definitely before the end of the month," said Schultz. "It very well might be in a couple of weeks."
After that, the next step will be the appeals, which are likely to be fast-tracked straight to the state Supreme Court -- and which Schultz expects will come from Coleman, with the court likely to have ruled that Franken is the winner: "It doesn't look like at this point the Coleman campaign has either made the arguments or has the numbers to switch it over to his side for victory. So I presume at this point that the court will find for Franken."
Schultz also affirmed that the Coleman camp's latest gambit -- to declare that the true winner cannot be determined, and the election results should be set aside -- is simply off the table legally. "He has to do more than simply cast doubt," said Schultz. "He has to make the case as to why, on the preponderance of evidence, he won."
Josh
Elana
Matt
Eric
"He has to make the case as to why, on the preponderance of evidence, he won."
which is why this has been a charade the entire time.
March 10, 2009 6:41 PM | Reply | Permalink
And how long would the Minnesota Supreme Court appeal trial last? What is the political make-up of that body?
March 10, 2009 6:42 PM | Reply | Permalink
The MN-SC is pretty balanced politically, but the whole proceeding has been quite apolitical, so I don't think it really matters. I'd be surprised if they took more than a few days.
March 10, 2009 6:51 PM | Reply | Permalink
Appeals courts don't do trials. They work off of lawyer's briefs and then some oral argument.
They could uphold the trial court and order the issuance of the certificate (which the winner takes to the Senate), they could reverse the trial court in whole or in part, and order them to fix whatever they didn't like about the decision.
But they don't do trials (i.e. evidence presented via witnesses and documents, with cross examination).
March 10, 2009 6:55 PM | Reply | Permalink
Actually, the appeal process is quick from the statute. I think it's only 15 days.
Franken rests tomorrow and they do some bs and do closing arguments by no later than friday. I will bet a lunch the ruling comes down on Monday, or earlier, if they do closings on Thursday, you will see a ruling on Friday. It's a senate seat that has been vacant for months. They aren't going to dilly dally. End of the month? Not in a million years.
March 10, 2009 7:02 PM | Reply | Permalink
Coleman gets a rebuttal period, then Franken gets to rebutt the rebuttal. Then Coleman will come up with something else to stall things some more. Then closing arguments. This case won't be finished this week. But I agree that they will hand down a decision within a day or two of the end of the trial. Then Coleman will stall out all of the time they give him for appeal. It will be another month before we see Senator Franken.
March 10, 2009 7:12 PM | Reply | Permalink
The beauty of franken limiting his case is that it limits coleman's rebuttal. You may be right on it not being done this week. I guess we shall see. The decision will definitely be quick and you are right that coleman will do everything possible to drag it out. I'll bet you a lunch it's less than a month though before we see senator franken. I'm sure the minnesota courts are tired of this bs and the state needs representation in the senate. Game on?
March 10, 2009 7:16 PM | Reply | Permalink
I still hope that the election contest ends any day by the panel granting Franken's motion to dismiss.
March 10, 2009 7:57 PM | Reply | Permalink
At this point they won't. Franken's already put his case in, Coleman would say they cut off his rebuttal and would take that on up as grounds to appeal.
Might as well wait another week and make sure that Coleman's done. Silver bullet through the head, stake through the heart, burned and the ashes buried in concrete.
March 10, 2009 9:11 PM | Reply | Permalink
I don't see how granting the motion to dismiss would give Coleman a stronger legal argument on appeal. Coleman rested his case-in-chief. If he didn't prove his case, then that's it. No need to waste any more time.
I suspect you are right that the panel will wait though. Its the more cautious approach, and judges are cautious by nature. Still, I continue to hope....
March 11, 2009 12:37 AM | Reply | Permalink
You left out the final part about dropping the concrete slab into the middle of Lake Superior.
March 11, 2009 4:47 AM | Reply | Permalink
Hey now, I sail on the Great Lakes from time to time so lets not go overboard as it were.
Isn't there a soon-to-be-disused gigantic hole at Yucca Flats we could drop the slab down?
March 11, 2009 9:09 AM | Reply | Permalink
Any reason to believe the trial court's order would be stayed pending appeal?
My guess is that a stay pending appeal is not automatic. So the losing party would have to seek a stay by the trial court, and if they declined, than the appellate court. Remember that Frankin is the officially certified winner, and if Coleman loses the election contest, there seems no just reason to stay enforcement of the court's final order.
So upon the court's declining a Coleman request for stay, than Frankin is seated in the Senate, appeal or not.
Anyone think otherwise?
March 10, 2009 9:24 PM | Reply | Permalink
I believe that someone else researched the law - a certificate cannot be issued until everything's done in the courts. The recent MNSC ruling interpreted this as "state court" - so it's likely that there will be another 15 days (or less) until the MNSC rules on Coleman's inevitable appeal. Then Al is seated.
From there I'm sure Norman Quimby tries to go to federal.
March 10, 2009 10:51 PM | Reply | Permalink
The key here is Minn. Stat. 204C.40(2) which effectively acts as an automatic stay until the election contest has been "finally determined." In its recent decision denying Franken's mandamus request, the Minnesota Supreme Court suggested that an election contest is "finally determined" after it hears the appeal. So the bad news is that Franken doesn't get a certificate after the panel rules in his favor, but the good news is that he does get one after the direct appeal to the Minnesota Supreme Court. (He doesn't have to wait while Coleman requests certiorari from the United States Supreme Court.)
March 11, 2009 12:32 AM | Reply | Permalink
I disagree re the meaning of 'finally determined'. I think you assume to much re a 'stay'. I think the GOP will take the position that seating Frankin must be blocked until appeals are exhausted, but I don't think the statute provides a stay beyond the trial court.
And how much damage is this doing to the GOP in MN? It must be extensive and if they push to block Frankin after the they lose in court (and of course they might win) than they will look really bad. I want the GOP to fight until the end just because of the self inflicted wounds but I want Frankin seated if he wins in the trial court.
And I agree with the poster re the spead in which the MNSC will act. They will push the briefing schedule very hard and rule quickly.
Assuming Frankin wins the trial, no one looks good further delaying the inevitable. Coleman has just not made his case.
March 11, 2009 3:51 AM | Reply | Permalink
I'd love to agree with you, but the Minnesota Supreme Court showed its hand on this question in its March 5 opinion (denying Franken's petition for mandamus). On page 16, the Court wrote: "The plain language of Minn. Stat. § 204C.40, subd. 2, provides that no election certificate can be issued in this Senate race until the state courts have finally decided the election contest pending under chapter 209." (Emphasis added.) The crucial point in that sentence for our discussion is that the word "courts" is plural. If the Court read the statute as allowing a certificate after the trial before the election court, then the word should be singular. That reading is also consistent with Fitzgerald v. Morlock, 264 Minn. 417, 120 N.W. 2d 336 (1963) (holding that a certificate of election could be issued only after final judicial determination of contest when time for appeals has expired).
I think it's unfortunately clear at this point that Franken won't get his certificate after the election court decision. Minnesota really ought to change this law. Its ridiculous to allow losing contestants to hold up the seating of public officials without a showing that the contestant is likely to succeed on the merits.
March 11, 2009 9:10 AM | Reply | Permalink
The local McClatchy rag (may they all dissolve into bankruptcy) just ran an above-the-fold article on how a new election would "work". Their scenario had either a federal injunction or Timmy P holding up the certificate and the Reps in the Senate filibustering, followed by the Senate Dems caving and saying, "oh OK, we'll declare the seat vacant and you can do a new election".
Unfortunately I can see the Senate Dems doing that. I can't see the MN DFL, which overwhelmingly controls the state legislature, going along though.
March 10, 2009 10:53 PM | Reply | Permalink
THIS IS EXCELLENT NEWS!! FOR NORM!!!
!!!COLEMENTUM™!!!
March 11, 2009 12:05 AM | Reply | Permalink
This has nothing to do with anything, but is it just me or does the picture of Norm at the top of the article look an awful lot like Nick Nolte's crazy haired mugshot, minus the crazy hair?
At least we know who is going to play him in the movie now... (Gary Busey might do the job if Nick is busy.)
March 11, 2009 12:59 AM | Reply | Permalink
Not bad. However, I would go with Willem Dafoe.
Franken could be played by Phillip Seymour Hoffman with a dye job. Or Franken could just play himself.
This whole thing is pretty much playing out like one of his satires, anyway.
March 11, 2009 11:12 AM | Reply | Permalink
Like most places, the active element of both parties here in MN is highly partisan.
Republicans who follow this matter want to see Norm leverage every option, regardless of time or money. Coleman's antics after the election, during the recount, during the court challenge and eventual appeal(s) do not embarrass them in the least. Any damage this does to the MN GOP is minor.
March 11, 2009 2:06 PM | Reply | Permalink