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What To Expect Today At The Minnesota Supreme Court

The Minnesota Supreme Court is set to hear oral arguments at 10 a.m. ET today in the Minnesota Senate election contest, hearing Norm Coleman's appeal of his defeat at the trial a month and a half ago. Check out our good friends at The Uptake for a video feed. So what can we expect? And when will Minnesota actually get a second Senator?

The first thing to remember is that we won't get a decision from the judges today, and probably not for several weeks. Instead, both sides will make their oral arguments, after having already filed written briefs over the last few weeks. The big thing to look out for will be how the five Justices of the court -- the court has seven members, but two have recused themselves because they sat on the state canvassing board that oversaw the recount -- react to the attorneys' arguments and what sort of questions they pitch.

The Coleman side has charged that variation among local elected officials in accepting or rejecting certain absentee ballots -- namely ballots from their own list, and largely from counties that Coleman carried overall -- amount to a fundamental violation of the Constitution under the 14th amendment. They have argued for the court to adopt a more lax standard for admitting ballots in, as opposed to strict adherence to the letter of the law on a ballot's requirements and qualifications. A consequence of this is that it seemingly implies they'll try to take this to federal court if they lose at the state level.

The Franken side, not surprisingly, argues that the election, the recount and the trial were above board, and that Coleman's legal arguments range from the spurious to the outlandish. And above all, they demand that Franken be issued a certificate of election by the state as soon as this appeal is done at the state Supreme Court.

Regarding that certificate, that is of course the big prize - the golden ticket that gets a politician into the Senate. Republican Gov. Tim Pawlenty has given mixed signals on just how quickly he might sign it, though if the court gives him a strong instruction to do so he will almost certainly follow it. On the other hand, Coleman and the national GOP could potentially try to get a federal court to block the issuance of the certificate. We'll see what happens.

A quick rule of thumb for today is that if an attorney is getting so many tough questions that it verges on ridicule, he's probably losing. But if he's getting just enough questions that it seems like the judges want to test out his theories and put him on the spot to answer potential objections, he might just have a shot. And if the lawyer is being treated gently, not facing too many questions, it can really go either way.


23 Comments

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The big thing to look out for will be how the five Justices of the court ... react to the attorneys' arguments and what sort of questions they pitch.

What is the partisan breakdown of the five justices?

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...the court has seven members, but two have recused themselves because they sat on the state canvassing board that oversaw the recount...

I am by no means a judicial scholar but my understanding is that in practice there is a fairly high bar to reach for most courts to overturn a ruling. With two of the canvassing board judges also sitting on the MNSC, it seems even less likely.

The inertia on this (I'd imagine it takes a lot less explanation to support an existing ruling than to overturn it) might be enough that Coleman would have a serious uphill battle with a legitimate legal argument. With his argument being of the "but I had the seat first! waahh!" variety it seems very unlikely for this to get flipped.

I have, however, been blinded by optimism on more than one occasion.

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I think you're generally right, though.

A number of us have talked about the more likely (if still not very likely) prospect of a Bush v. Gore kangaroo-court Overreach at the Federal level. That prospect may make the present court pretty nervous and cautious about its every move, though.

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I agree that potential Supreme Court involvement could complicate things substantially. My point was that while party affiliation is an important factor (based on my brief look through wikipedia, it seems it is largely Republican - do we have an official breakdown?), not contradicting a ruling made by two of their colleagues could also play a significant role.

A brief (likely rehashing) thought on SCotUS involvement. I see three things discouraging them hearing an appeal, there is little to gain, it will do little for their image of impartiality and their could be significant negative impact for the conservative elements of the court.

I cannot imagine public opinion supporting SCotUS stepping in to hand the election to Coleman. The perception would be that the SCotUS is a puppet of the GOP which would give Obama free reign to appoint liberal justices to the court (perhaps even require it). Stevens is 89 and there are four more justices that are 70+ so if Obama gets two terms, there may be a few more appointments to make.

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This are good comments, obviously.

I've argued, perhaps harshly, that one can picture Alito as a result-oriented viper, but I have a hard time supposing that Roberts wants to trash his reputation as has e.g., Scalia. Some say I'm wrong in that, though, given decisions that Roberts has been involved in; I don't follow it closely enough to have a well-developed opinion.

Other reasons they might hesitate to further disgrace themselves would be the Constitutional provision giving the Senate power over who sits there, the likelihood that if they tried to override that somehow they would face an ugly constitutional crisis and thus make themselves look ever more foolish at best, and the chance that Kennedy might not be along for the ride this time. Thanks for thoughtful discussion!

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I think you are spot on with the senate issue.

I see three possible outcomes from a SCotUS hearing:

  • Find for Coleman - they look like corrupt puppets of the GOP
  • Find for Franken - they affirm that he won but appear to be obstructing his seating
  • The Senate steps in and seats Franken - they (SCotUS) look like impotent puppets of the GOP

If (when?) Coleman files with the SCotUS, the best outcome for Republicans long term is that the case goes unheard. In that scenario, they get to talk about how the government was obstructing the enfranchisement of voters and how the evil Democrats pressured the Supreme Court to not even hear Norman's case.

Whatever happens, I don't see Coleman's supporter(s) forming a MoveOn type organization.

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I'm listening to it right now on StarTrib and Coleman's lawyer is getting grilled...big time. Not only that, but he seems to be extremely argumentative with the Judges...not a smart idea.

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Odd. I wonder what the Coleman team's strategy is on that. Maybe they realize that they've already lost before the MNSCT and have jettisoned any attempt to persuade the justices in favor of putting on a show for the media.

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In a way, it does seem that Coleman's guy is maybe talking "past" the Judges. Maybe they've already given up the ghost on the MNSC and are looking to SCOTUS? Not sure, but they're acting pretty strange...rather belligerent.

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Well, having read the briefs, I think the reason for this grilling is that Coleman's arguments really are pretty bad. They are aggressively questioning trying to find the meat or the angle that might make the argument better.

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I agree that the Court is unlikely to decide the case today, but its not beyond the realm of possibility. If the Court is sufficiently convinced of the need to expedite the matter, the Court could issue an order with an opinion to follow.

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The Court is slamming Team Coleman (the Gang that couldn't shoot straight). They are clearly not buying Coleman's arguement and are pointing out gross errors in their filing.

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I don't see how this is not going to trial. The Judge that is grilling team Franken right now, seems very certain that Coleman has enough "evidence".

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This is the trial, or as close as it gets. It's not a preliminary hearing, it's the whole show.

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Huh? There already was a trial. This is the appeal.

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Anybody know the partisan breakdown of the justices? What is the count on R's and D's?

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What if they count ALL ballots, including the ones they'd rather not?

I think it's fine that MN is tolerating this lack RNC votes, going out of its way to let Mr. Coleman bail out with some dignity. But if they exhaust the number of ways to count the cookies (remember Ernie, rearranging the cookies on Bert's plate to hide the one he ate?), then don't they have to accept that 5 is 5?

It has already grown outside the borders of Minnesota, so maybe we should declare war on them to pre-empt something, like a lactose bomb going off on Main Street. It seems dangerous, in this dangerous time, to allow another Republican Reject to continue to influence the country's direction.

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though if the court gives him a strong instruction to do so he will almost certainly follow it.

There's no way he signs this until the USSC has ruled on it. He'll just keep up the pretense that the "legal issues have not been resolved". Just no way an aspiring Pres. candi allows "The Sixtieth" to happen.

And then look for this procedure to become the de rigeur future protocol for every close Senate election.

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I'll tell you what, if Pawlenty doesn't sign after the MNSC decision he'll *have* to run for Pres. in 2012, because his MN Gov. re-election chances become slim to none.

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And he'll have to run as a private citizen, as he's up next year.

Presuming, of course, that Peter Hutchinson or some other third (Independence) party spoiler doesn't draw the dimwits of the DFL who won't find the mainstream candidate sufficiently "reformist" or some such nonsense.

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Exactly. And being an out-of-work ex-governor is not a great platform. People have short memories. By 2012 it will be Paw-who?

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Yeah, just ask Jessie Whatshisname...

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For me the burning question is: will the court be able to get its act together in time for the next election cycle ?

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