By Ernest A. Canning on 4/20/2009, 9:51pm PT  

Guest blogged by Ernest A. Canning

Operating out of an undisclosed location, former Sen. Norm Coleman's attorney, Ben Ginsberg, announced that the Coleman legal team had filed a notice of appeal with the Minnesota Supreme Court, seeking to overturn the three-judge panel decision [PDF] declaring that Al "Franken received the highest number of lawfully cast ballots in the November 4, 2008 general election for United States Senator and is entitled to receive the certificate of election."

Ginsberg asserted that the appeal was based on the same contentions made during the course of the election contest, especially as it relates to equal protection and an alleged disenfranchisement of some 4,400 Minnesota voters.

Franken attorney, Marc Elias, responded, noting that five of the six claims made by Coleman's appeal seek not to add additional votes but to delete votes already counted. Elias announced on that he plans to file a motion on Tuesday with the MN Supreme Court asking that the court order expedited briefing, with Coleman's brief to be filed by Monday Apr. 27, and Franken's response on May 2.

There's not a whole lot new or unexpected yet here, for the moment, though a review of the political balance of the MN Supreme Court who will hear Coleman's appeal is probably worth a quick look, right about now...

In our last post on this matter we set forth the reasons why we felt a Coleman appeal continues to be "dead in its tracks," as we originally argued as long ago as February, as based on information already on the public record even then. In particular, in the more recent piece, we observed that in alleging the disenfranchisement of 4,400 Minnesota voters.

Ginsberg is referring to the three-judge panel's February 13, 2009 ruling which found that Minnesota's strict standards for the opening and counting of absentee-ballots must be applied on a ballot-by-ballot basis. Ginsberg will be appealing this ruling to a MN Supreme Court which, in Coleman v Ritchie (March 6, 2009), already ruled [PDF] that those strict standards must be applied.

The 7-week election contest, which concluded last week, was heard before three judges who were appointed by a Republican governor, a Democratic governor and an Independent governor, yet their decisions throughout were unanimous.

Coleman's appeal has been filed with a seven member MN Supreme Court. Here's the general political makeup of the MN Supremes:

  • Four of the Justices, Chief Justice Magnuson and Justices Gildea, Dietzen and G. Barry Anderson were all appointees of Republican Gov. Tim Pawlenty appointees.
  • Justice Paul H. Anderson was appointed by former Republican Governor Arne Carleson.
  • Justice Meyer was appointed by the Libertarian-leaning independent Gov. Jesse Ventura.
  • Former NFL Hall of Famer, Justice Alan Page, who formerly served on the staff of a Democratic Attorney General, was elected (as opposed to appointed) in 1992.

The Chief Justice and Justice G. Barry Anderson have recused themselves from the Coleman/Franken proceedings because they served on the MN state canvassing board, as appointed by Democratic Sec. of State Mark Ritchie, to oversee and adjudicate the recount last Decemeber. The state canvasing board certified Franken as having received 225 more vote than Coleman on Jan. 5, 2009.

While some commentators have suggested that Justice Dietzen should recuse himself because he has twice donated to Coleman campaigns, that contribution does not, in and of itself, establish bias. Though critics might rightly argue that there is, at least, an appearance of conflict of interest. If Dietzen ends up siding with Coleman's argument, it could be a basis for questioning the court's ruling.

If donations to a political candidate were the sole determinant on whether a Justice should recuse themselves from this case, however, Republicans might similarly urge the recusal of Ventura-appointed Justice Meyer who has made contributions to Democrats, though none to either the plaintiff or defendant in this particular case to our knowledge.

If Dietzen decides to recuse himself, the makeup of the court hearing Coleman's appeal would be 2 Republican-appointees, 1 Democratic-appointee, and 1 Libertarian-appointee who has a record of contributing to Democrats), so we could consider that as 2 Rs and 2 Ds. If Dietzen doesn't recuse, the court would be made up of 3 Rs and 2 Ds.

Beyond all of that, and pending review of any unknown surprises in Coleman's actual filing (which has not yet been posted as of this writing) nothing new has occurred to alter our opinion that Franken will prevail on this appeal. That is a perception that the Senator-elect, who has now named a state director so he can "hit the ground running on day one", apparently shares.


Ernest A. Canning has been an active member of the California State Bar since 1977 and has practiced in the fields of civil litigation and workers' compensation at both the trial and appellate levels. He graduated from Southwestern University School of Law where he served as a student director of the clinical studies department and authored the Law Review Article, Executive Privilege: Myths & Realities. He received an MA in political science at Cal State University Northridge and a BA in political science from UCLA. He is also a Vietnam vet (4th infantry, Central Highlands 1968).