Ruling Boosts Franken Case

Posted March 31, 2009 at 4:36pm

Updated: 7:35 p.m.

Democrat Al Franken moved one step closer to being declared the winner of the disputed Minnesota Senate race Tuesday afternoon, after judges in the state ruled that a relatively small number of additional ballots will be included in the final recount tally in his race against Republican Norm Coleman.

A three-judge panel ruled that only up to 400 previously uncounted absentee ballots would be reviewed to see whether they were wrongfully rejected and then possibly added to the final tally. That number is a far cry from the roughly 1,350 ballots that Coleman’s legal team hoped would be reviewed for inclusion in the final count.

Franken led Coleman by 225 votes at the end of a hand recount — a result that the former one-term Senator has contested in court for the past two months.

With a such a small number of votes separating Franken and Coleman, it’s unlikely that the additional ballots could swing the election in Coleman’s favor — a near mathematic impossibility that Coleman lead recount attorney Ben Ginsberg acknowledged was a “long shot— in a conference call with reporters.

Ginsberg said the ruling — which he dubbed an April Fools’ Day decision — forces the Coleman legal team to appeal to the state Supreme Court.

“It will give us no choice but to appeal that order to the Minnesota Supreme Court,— Ginsberg said. “We are disappointed, but we feel the court is wrong and we will appeal.—

Ginsberg declined to say whether Coleman planned to appeal to the U.S. Supreme Court, saying their appeal to Minnesota’s highest court was “all we’re prepared to discuss at this point.—

The three judges also explicitly stated in their ruling that not all 400 of the ballots to be reviewed will be added to the final tally, but instead many will undergo further scrutiny to determine whether they will be counted. The judges ordered all of the ballots to arrive at a local courtroom to begin being opened, reviewed and counted on April 7.

Franken attorney Marc Elias said he was pleased with the court’s ruling but stopped short of declaring victory because it is still unclear what lies inside the up to 400 previously rejected absentee ballots.

“We’ll find out on Tuesday what’s in these envelopes,— Elias said. “Right now we’re only talking about envelopes where we don’t know what the ballot yields.—

Nonetheless, Elias said the simple math of overcoming a 225-vote deficit from a universe of 400 ballots will be almost impossible for Coleman.

“Obviously the math is going to be very different for former Sen. Coleman and his legal team at this point,— Elias said.

An initial review by Roll Call of the 400 ballots that were ordered to be looked at further showed that 167 of them were from the home counties of the Twin Cities, where Franken had a strong showing.

The Tuesday decision is the first of what is expected to be several rulings in the recount trial that stemmed from the disputed 2008 Senate race. After ballots are opened and counted next week, the court will eventually make a final ruling on which candidate received the most lawfully counted votes in the contest and effectively won the election.

The Senate can legally seat Franken at any time. With Franken in the Senate, Democrats would have have a caucus of 59 Senators and would be one pivotal vote closer to the 60-vote threshold that eases passing legislation.

Jim Manley, a spokesman for Senate Majority Leader Harry Reid (D-Nev.), said in a statement that Franken would be seated when the the Minnesota courts finally resolve the case.

“Sen. Reid is looking forward to the final resolution of this case by the Minnesota courts so that Al Franken can finally be seated as the new senator from Minnesota,— Manley said.

GOP leaders have threatened to filibuster any attempt by Democrats to seat him before all of Coleman’s legal options are exhausted. National Republican Senatorial Committee spokesman Brian Walsh promised Republicans would continue to support Coleman throughout the recount.

“The NRSC has and will continue to support Norm Coleman’s efforts to ensure that thousands of Minnesotans are not disenfranchised, that ballots exist before they are counted and that every legitimate vote that was cast is counted once in Minnesota,— Walsh said.

The judges also described in their decision what a painstaking process this trial has been, from reviewing 1,717 exhibits and transcripts in the courtroom, to plowing through more than 21 feet of paper copies of evidence from the trial.

“The product of this is a very thoughtful order from the court, a very thorough consideration and one concurrent with the standards of the court from the very beginning,— Elias said.

David M. Drucker contributed to this report.