In a packed courtroom Monday, Republican Norm Coleman’s team appealed to the Minnesota Supreme Court, in what might be the final stage of the almost seven-month long battle for the empty Minnesota Senate seat.
During the hour-long appeal, attorneys from both sides fielded questions from five justices from the state’s Supreme Court. Coleman’s appeal seeks to overturn a lower court’s ruling that Democrat Al Franken won last November’s election. Franken currently has a 312-vote lead.
The Coleman camp’s major argument is a violation of equal protection — which states that all citizens should be treated equally under state law. Coleman attorney Joe Friedberg said the lower court’s panel denied votes by being more stringent toward determining eligible ballots during the trial than local officials were during the recount.
"You’ve changed the rules after the game’s been played,” Friedberg said.
The correct process, Friedberg argued, could bring about 4,400 more rejected absentee ballots into the count.
Coleman’s appeal also states that the lower court incorrectly ruled that the 132 missing ballots from a Dinkytown precinct should be counted. Coleman’s team argues that because the ballots could not be found during the recount, they should not be counted in the final tally.
However, several justices suggested that Coleman's team had failed to provide enough evidence to prove that there were widespread irregularities on Election Day.
Associate Justice Christopher Dietzen said he was bothered by the Coleman team’s lack of proof.
Echoing that sentiment, Associate Justice Helen Meyer said while the three-judge panel provided enough evidence in their ruling, the Coleman team called only about 26 of Minnesota's more than 80 counties to find Election Day irregularities.
Franken attorney Marc Elias had a theme to his argument: every vote has a story.
“There were reasons these votes were rejected,” Elias said to the justices, adding that even if more absentee votes were counted, Coleman couldn’t overtake Franken’s more than 300 vote lead.
But Franken’s attorney didn’t get by the justices without his own line of questioning, which focused on evidence showing some ballots counted on Election Day were “illegally cast,” or did not meet Minnesota law requirements.
"The question here is who got the most legally cast ballots,” Associate Justice Lorie Gildea said. “If we're supposed to decide who got the most legally cast votes and there is evidence that suggests that illegally cast ballots were accepted ... how can we tell?"
Elias said that the burden of proving there were mass amounts of illegally cast ballots was on the Coleman team, who didn’t provide enough evidence.
A decision from the state’s Supreme Court is pending, and could take several weeks. If Coleman wins their favor, counting could be sent back to the lower court’s three-judge panel, who oversaw the recount trial.
If the court rules in favor of Franken, as nationally recognized political expert David Schultz said he expects, the Democrat would win the battle at the state level.
However, Coleman has not ruled out an appeal to the U.S. Supreme Court.
Schultz, a professor at Hamline University, said it’s unlikely that higher courts would take on the case.
“It will be 5-0 for Franken, I would almost bet my wallet on this one,” he said. “The court was not persuaded … this is the end of the road.”
Four University of Minnesota first-years made the trek from Rochester, Minn . to catch the appeal.
“I set three different alarms this morning to make sure I got up on time,” Sam Westreich, a first-year studying genetics, said.
Westrich said he was surprised at the level of detail the judges delved into.
“I thought it was just going to be merely ‘do these votes count or not’,” Westreich said. “At this point, the vote total is so close that the election could depend more on the lawyer’s arguments than on who got the most legally cast votes.”