More evidence they may be preparing an appeal strategy to call for a 'do-over' in MN's U.S. Senate Election
UPDATE: 'Swiftboat' Ben Ginsberg declares trial a 'legal quagmire'...
By Brad Friedman on 2/18/2009, 11:27am PT  

[Updated at end of article.]

While God may have chosen him, if not the voters of Minnesota, evidence is growing that former Sen. Norm Coleman may be preparing for a "do-over" gambit. We'd offered speculation on this front a week or two ago, and yesterday, following another slog of a day at the U.S. Senate Election Contest court in St. Paul, the Republican's top legal spokes, Ben Ginsberg, described the election as "fatally-flawed" in his post-trial presser. The freshly floated phrase has re-ignited speculation about Coleman's longer-term legal strategy...

Alleging that apparent Sen.-elect Al Franken's current lead of some 250 votes (he said the word "lead" was a word he used "euphemistically") was based on "illegal votes," Ginsberg further stoked speculation that, no matter what the contest court ended up finding at the end of the day, if Coleman still had fewer votes, they would appeal to higher authorities, seeking to overturn legal decisions, or otherwise demand a re-do election.

Ginsberg's statement followed on the heels of the court's decision last Friday which removed more than a thousand rejected absentee ballots from possible consideration, since they were not "legally cast," and a day of arguing that some absentee ballots, in other counties, were counted, even though they were not "legally cast," according to state law and the court's definition. That, argued Coleman's team, is a violation of the Constitution's Equal Protection clause.

As Eric Kleefeld of TPM noted:

So the Coleman camp appears to be setting up a choice for this court or any future appeals: Either count all these rejected ballots, under Coleman's novel Equal Protection claim, or we'll insist that this whole election was illegal and demand a mulligan.

Come to think of it, they could still claim that the election was illegal if those ballots are all counted, and Norm is behind.

So far today, the 3-judge panel has declined [PDF] to review last Friday's decision, despite a motion [PDF] from the Coleman camp that they do so.

"The important part here," reports Kleefeld, "is that Coleman is establishing a record of this court shooting him down on matters of law --- which he will be practically certain to appeal should the trial end with him still losing the race. And remember that the Coleman camp is already calling out the vote count as 'fatally flawed,' hinting that one contingency plan for after this trial could be to seek a do-over election."

Whether this court, or any court, would accept that argument remains to be seen, since the same legal argument could likely be made for just about any election anywhere. At least one in which there are different officials, in different counties, doing their best to interpret uniform state standards for counting (and rejecting) various ballots. There are bound to be variances in their interpretation and execution of state law in such cases.

Then again, that didn't stop the U.S. Supreme Court from making such a finding in FL 2000 (where Ginsberg also drove the legal strategy) and subsequently adding the unprecedented directive that the decision should not be applied to any other election contest. For the same reason --- that the GOP's FL 2000 "Equal Protection" argument could be used to shut down just about any election anywhere --- they had little choice but to claim their decision applied only to Bush v. Gore.

With a still-GOP-friendly SCOTUS, and the same legal mind bringing them the case, they could pull the same move in a Coleman v. Franken appeal. As their 2000 decision was unpopular enough, it would certainly be a surprise if they did so. Even as we wouldn't put anything past them.

LATE UPDATE: Coleman's attorney. "Swiftboat" Ben Ginsberg, has now declared the trial "a legal quagmire that makes ascertaining a final legitimate result to this election even more difficult." See Kleefeld or the Strib for details, but it's becoming clearer by the moment what the Coleman strategy now is. It begins with desperation, but may likely end at the Supreme Court of the United States.

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