This coming week, Minnesota's Canvassing Board will declare what everyone's been waiting for in the state's prolonged U.S. Senate race: A winner.
Well, sort of.
After awarding a last batch of votes from more than 950 improperly rejected absentee ballots, the Canvassing Board is expected to declare either Democrat Al Franken or Republican Norm Coleman as winner of the recount. But Minnesota law lets the losing candidate file an "election contest" that would throw the whole race into the courts, effectively blocking final certification of a new senator.
"I'd say it's close to inevitable" that the losing candidate will sue, said Edward Foley, an election law expert at Ohio State University who has closely monitored the Minnesota recount.
Coleman's term as senator officially expired Saturday while the board examined the absentee ballots.
He now trails Franken by 225 votes after a review of the formerly sealed absentee ballots. Franklin netted 176 votes more than Coleman in the count Saturday.
After the Canvassing Board names a winner, the losing candidate has seven days to file a lawsuit. If he does, the certification of a winner remains conditional until the court challenge is settled.
Laying the legal groundwork
Lawyers for both campaigns have laid the groundwork for lawsuits through public comments and legal maneuvering. In recent weeks, as Franken clung to a small lead, Coleman's lawyers promised a lawsuit over their claim that some ballots duplicated on election night wound up being counted twice in the recount.
Franken stands to lose as many as 110 net votes if the court were to take Coleman's side on the duplicate ballot issue. Coleman's lawyers could also make an issue of the loss of 133 ballots in Minneapolis, which the Canvassing Board resolved by using the election night count for that precinct. If Coleman were to prevail on that, Franken would lose 46 votes.
The standards for accepting or rejecting absentee ballots are fodder for either candidate in a lawsuit, and Foley predicted that a lawsuit could also make use of issues that so far have received little or no attention.
"I suspect there are other things that lawyers for both campaigns have flagged internally, that they haven't necessarily brought to public attention yet," Foley said.
Any lawsuit would go to a three-judge panel to be appointed by state Supreme Court Chief Justice Eric Magnuson. What's not clear is whether Magnuson would make the appointments himself, or delegate the decision since he served on the Canvassing Board.
When the 1962 Minnesota governor's race went to a recount and then a lawsuit, the chief justice at the time ordered the two campaigns to mutually agree on the makeup of the three-judge panel.
State law requires that a trial start within 20 days of a lawsuit being filed. The burden of proof would fall on the candidate who filed the challenge, who would have to provide evidence that the Canvassing Board declared the wrong guy the winner of the recount.
Lawyers for the other candidate would be given time at the trial to refute claims brought by their adversaries.
'Goes back to zero'
It's difficult to predict what twists and turns the trial could bring. "Everything really kind of goes back to zero," said Brian Rice, a Minneapolis attorney who's worked on more than a dozen recounts in local Minnesota races.
"What if one of the parties says we want to recount everything, every single vote, again?" Rice asked. "That has happened, and it's provided for in law."
State law sets short deadlines for the trials of election lawsuits, and Rice said the ones he's worked on have always proceeded quickly. But the 1962 recount gives a hint that it won't happen too quickly: In that case, the three-judge panel didn't declare a winner until March 21, 1963.
Even that wouldn't necessarily end the process. The loser of a lawsuit could appeal to the state Supreme Court, and legal concepts such as equal protection already raised by both campaigns could provide footing for federal appeals.
In the meantime, questions remain over whether the Canvassing Board's declared winner could be provisionally seated in the Senate — or if Minnesota will go for a time with just one U.S. senator. Sen. John Cornyn of Texas, the incoming chairman of the National Republican Senatorial Committee, told reporters Friday that Republicans would object to seating anyone before the already lengthy process is finished.
Joe Peschek, a political science professor at Hamline University, predicted that the longer the race remains unsettled, the more public pressure would go on the candidate who is perceived to be pushing back a final resolution to the race.
"Does it look like they're pursuing a serious case? Or does it look like sour grapes and cherry-picking of issues?" Peschek asked. "But these two candidates have proved they're competitive people, and as long as there's some small hope, we probably shouldn't expect that they'll give it up."
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