The Lake Wobegone Recount: Minnesota's Disputed 2008 U.S. Senate Election

A. The successful examination of ballots to discern voter intent

The Board's conduct in reviewing challenged ballots was widely seen as exemplary of a fair and impartial process. Three main factors contributed to this perception. First, the accessibility and transparency of the Board's deliberations made it feasible for members of the public to judge for themselves the quality of the Board's proceedings. It was possible to watch the Board's ballot-by-ballot deliberations live on the Internet (through a new “citizen journalism” project called www.theuptake.org), as well as to follow detailed accounts posted by journalists and bloggers in attendance. One web-only news service, MinnPost (whose reporters had been trained at now-downsized traditional newspapers), distinguished itself by the high quality of its coverage, both in terms of “play-by-play” descriptions of the proceedings (by Jay Weiner) and analytic commentary (by Eric Black). These “new media” endeavors supplemented, rather than supplanted, traditional newspaper coverage from the Minneapolis Star Tribune and the St. Paul Pioneer Press (among others). ³⁸

The Internet allowed the public to actively participate in the recount proceedings. Both Minnesota Public Radio and the Star Tribune posted on their websites photos of various challenged ballots and asked their audiences to submit their judgments on whether the ballots should be counted and for whom. ³⁹ Some of the posted ballots immediately became the stuff of legend. The most notorious one seemed to vote for “Lizard People” as a write-in candidate. ⁴⁰ Although people joked about the oddities of some ballots, by participating in the online examination of challenged ballots they developed a good understanding of the task confronting the Canvassing Board and thus were able to evaluate the reasonableness of the ballot-specific judgments that the Board would reach.

The second main factor that aided Minnesota in the conduct of the recount was the rules specified in advance about how questionable ballots should be judged to determine whether they should be counted for a candidate. Minnesota has a statute (204C.22) that is relatively specific in how to identify voter's intent from the marks on a ballot. ⁴¹ Although the statute does not (and could not) eliminate all discretion and judgment on the part of the officials conducting the ballot-by-ballot review, Minnesota's statutory standards are certainly more specific than the ones that Florida had in 2000 governing the dispute over hanging and dimpled chads. ⁴² In addition to the statute itself, Minnesota's Secretary of State had published a “Recount Guide” containing pictures of typical questionable ballots, indicating how they should be handled. ⁴³ And again, unlike Florida, Minnesota lodged the authority to make the judgment calls over challenged ballots in the hands of a single five-member statewide body, rather than among a myriad of local officials and institutions. ⁴⁴

The third major factor contributing to the successful recounting of ballots was the membership of this five-member Canvassing Board. It was something of an accidental, or at least fortuitous, success. Minnesota law provides that the Secretary of State shall be a member of this Board and shall appoint four jurists to be co-panelists: two from the state's Supreme Court and two from a lower court. ⁴⁵ The requirement of four judicial, rather than legislative or administrative, officers increased the likelihood that the Board's deliberations would be evidence-oriented and rule-guided, rather than merely partisan and outcome-driven in their calculations. Still, there was no guarantee that the four jurists or the Secretary of State would be genuinely impartial and scrupulously nonpartisan, nor any guarantee that they would be skilled in the exercise of their recount tasks. Indeed, before Secretary of State Mark Ritchie announced the names of the four jurists who would join him on the panel, there were suspicions that he might tilt the body in favor of Franken. Having a reputation as a liberal, with ties to voting rights activists, Ritchie was initially distrusted by Coleman's supporters. ⁴⁶

Yet Ritchie soon proved his ability to set aside partisan affiliation in his role as chair of the Canvassing Board. First, he essentially turned over his appointing authority to the judiciary itself: he asked Chief Justice Eric Magnuson to select the two members of the Supreme Court who would serve on the panel, and he likewise asked the Chief Judge Kathleen Gearin of the Ramsey County District Court to select the other two members. It turned out that both Chief Justice Magnuson and Chief Judge Gearin selected themselves, as well as one colleague each. But this rather haphazard method of appointment resulted in a balanced and highly competent body. The Chief Justice and Justice Barry Anderson were recognized Republicans: both had been appointed to the Supreme Court by Governor Tim Pawlenty, and they each had longstanding Republican affiliations on their resumes. Their membership on the Board immediately counteracted Ritchie's allegedly leftward leanings. Furthermore, Judge Edward Cleary had been appointed by Governor Jesse Ventura, an Independent. ⁴⁷ As Minnesota has a stronger tradition of an Independence third party than other states—and since Independent candidate Dean Barkley had garnered 15% of the vote in his race against both Coleman and Franken ⁴⁸ —it was valuable to have representation of the Independence Party perspective on the panel. Finally, it was difficult to discern the political leanings of Judge Gearin, who had been elected to the bench without any party affiliation. ⁴⁹ With this varied group in place, it could not be said that the panel was decidedly biased in one direction or another.

But it was not just who the members were that generated a public impression of their fairness and impartiality. Rather, it was also very much how they conducted themselves in their transparently Internet-accessible deliberations on the ballots and the issues that arose. In his role as chair, Ritchie went out of his way to avoid an appearance of bias, adopting a posture of invariably moving to sustain the local recount team's ruling on a challenged ballot regardless of which candidate had made the challenge. ⁵⁰ Together, Ritchie and Chief Justice Magnuson were the evident bipartisan leaders of the Canvassing Board, both exhibiting considerable leadership skills suited to their public roles. Moreover, all members of the panel appeared thoughtful, intelligent, judicious, and fair-minded in their consideration of marks on the ballots and how to treat them. The fact that the five-member panel was consistently unanimous in virtually all of its rulings (and all of its major ones), despite the diversity of its members' backgrounds, added significantly to the impression that they were making their judgments based on the evidence and the law, as best as they humanly could, rather than out of any desire to have a particular candidate prevail. ⁵¹

In sum, it seems difficult to imagine a better method for the human evaluation of hand-marked ballots than the one Minnesota employed for the 2008 recount of its U.S. Senate race. To be sure, Minnesota might have adopted a statute that did more to increase the likelihood that the members of the Canvassing Board would be fair and skilled in the way they turned out to be. And perhaps the procedures for challenging ballots at the local level might have been streamlined in such a way as to avoid the need to reduce total statewide number of challenged ballots from 6,655 to the 1,337 that the Board eventually faced ⁵² —although one virtue of the process that Minnesota employed was that each side felt it had the right to challenge as many ballots as it thought necessary, thus preserving the fairness of the process that led to the eventual whittling-down of these challenges on sober reflection. ⁵³ Many states would do well to use Minnesota's experience in this respect as a starting point for improving their own recount procedures.

B. Issues beyond the discernment of voter intent

For all the success of the process the state used to review the marks on each ballot, three problems emerged during the recount that could not be handled simply by this process.

A. The operative statute

The relevant Minnesota statute, 203B.12, specified four requirements an absentee ballot must meet in order to be counted, stating that noncompliance with any of these requirements obligates local officials to reject the ballot:

(1) the voter's name and address on the return envelope are the same as the information provided on the absentee ballot application;

The very next sentence of the statute explicitly stated: “There is no other reason for rejecting an absentee ballot.” ⁷³ Thus, if there were absentee ballots that did not fit within one of the four specified grounds for rejection, it seemed straightforward that these ballots had been improperly rejected and should have been counted.

The Franken campaign indeed was able to identify ballots the rejection of which had been obviously mistaken: for example, a voter whose ballot had been rejected on the ground that the voter was not registered when, in fact, the state's database showed the voter to be registered. The Franken campaign even made a video of several voters who claimed their ballots had improperly been rejected for this reason. ⁷⁴ Moreover, some counties soon admitted that they had been mistaken in rejecting some ballots. Itasca County was the first to do so, saying that “we messed up” by accidently putting in the “reject pile” a ballot that had been accepted for counting. ⁷⁵ In a state with a public culture committed to counting every valid vote, and also committed to minimizing vote-counting errors and correcting them when they exist, there was evident public pressure to find a way to rectify these obvious mistakes and count the wrongly rejected absentee ballots.

B. The initial skirmish over information

Franken's initial strategy—not surprisingly, for a candidate who was narrowly behind at the time—was to try to determine how large the pool of wrongly rejected absentee ballots might be, who might have cast them, and whether they might be likely Franken voters. Accordingly, his team submitted requests for this information to local officials around the state, so that they could duplicate the kind of showing that they initially made for just Minneapolis. Fourteen of the state's 87 counties complied, but most of the others did not—including Ramsey County, which includes St. Paul, the capital. ⁷⁶

On Thursday, November 13, Franken sued Ramsey County to get this information. ⁷⁷ Ramsey County resisted on the ground that it did not want its voters harassed by campaign officials. But Franken argued that the information was essential to determining the lawful winner of the election and that, in any event, it was a public record to which he was entitled; as long as the secrecy of the ballot itself was maintained (preserving the privacy of how a specific voter cast the ballot), the identity of individuals whose ballots were rejected must be publicly transparent, just as are the identities of the individuals in the poll roster whose ballots are cast and counted on Election Day. Otherwise, the public cannot know that the votes counted are the ones—only the ones, and all the ones—entitled to be counted in the election. ⁷⁸

The following Wednesday, November 19, the state trial court held a hearing on Franken's suit and immediately ruled in his favor. Ramsey County did not appeal. ⁷⁹ Other counties that had been following Ramsey's lead in withholding this information from Franken soon complied, so as not to have to face their own lawsuit on this issue. Thus, one can look at this preliminary litigation over access to information about rejected absentee ballots as a relatively minor bump in the road on the way to bigger issues. Still, it is disconcerting that there would be a need for any litigation at all on this point. State law, and the underlying principle it protects, ought to be abundantly clear—all voters in an election are equally entitled to know which of their ballots were counted and which were not so that all voters are able to assess the legitimacy of the count—so that any resistance to the law embodying this principle would be demonstrably untenable and thus not worth the cost of fighting it. Minnesota's law on this point was not so clear as to prevent Ramsey County from forcing Franken to take the matter to court. ⁸⁰

Even with this preliminary legal victory, Franken's battles over rejected absentee ballots had hardly begun. He now had the information he sought, but the rejected ballots were still rejected, and many counties would not undertake a reexamination of them without a further legal fight.

C. The request to review rejected absentee ballots

Franken wanted the State Canvassing Board to order local officials to reexamine rejected absentee ballots, so that they could be included in the recount if they had been wrongly rejected. This the Board would not do, as it believed it had no authority to require such reexamination. But over the course of two meetings to prepare for its role in the recount, the first on November 26 and the second on December 12, the Board unanimously developed the position that it would encourage localities on their own initiative to engage in a reexamination of rejected absentee ballots. ⁸¹ (Its encouragement was more definite, and less tentative, at the second meeting than at the first.) The Board would then be in a position to consider whether it was entitled to include such locally reconsidered ballots as part of certifying the results of the recount. ⁸²

At the time the State Canvassing Board made this request of local officials, it was in Franken's interest to increase the number of previously rejected absentee ballots that upon review were now seen as eligible for counting. Consequently, in describing the standard he believed should be used to decide whether to count a previously rejected ballot, he took a position that he subsequently opposed during Coleman's judicial contest of the election. Before the Canvassing Board, Franken urged the adoption of the “substantial compliance” standard, rather than “strict compliance,” to determine whether an absentee ballot should be counted—meaning that as long as the voter “substantially complies” with the relevant statutory requirements, the ballot should count, even if the voter fails to “strictly comply” with that requirement. ⁸³ In the subsequent judicial contest, Franken vigorously opposed Coleman's invocation of this “substantial compliance” standard and, instead, argued strenuously that Minnesota law demands that voters adhere to “strict compliance” in the casting of absentee ballots. But during the recount, Franken was emphatic that the Board must adopt the “substantial compliance” standard. ⁸⁴ A point heading, followed by several pages of argument, in one of Franken's briefs to the State Canvassing Board proclaimed:

The “substantial compliance” standard would likely yield more countable ballots, which Franken needed at the time.

One cannot fault Franken for reversing his legal position on this issue between the recount and the judicial contest (or for Coleman doing the same, only in the opposite direction). Candidates want to win, and their lawyers will try to make whatever arguments might increase their chances of winning at each stage of the dispute. A candidate who is behind will attempt to harvest more ballots through invocation of the “substantial compliance” standard. Conversely, the candidate who is ahead will assert the “strict compliance” standard in the opposite effort to limit the counting of additional ballots. Consequently, when Franken was behind, he made one argument; once he pulled ahead, he switched to the opposite argument. Coleman did exactly the same. The important point is that the institutions that adjudicate these disputes should be structured in such a way to withstand the pressures that the candidates will exert in their efforts to win.

D. Coleman goes to court

During the recount, Coleman sought to limit the counting of previously rejected absentee ballots, since he was still ahead at that time. He initially took the position that counties like Itasca could correct blatant mistakes, like putting an “Accepted” ballot in a “Rejected” pile. But as mid-December approached, and the magnitude and complexity of the problem concerning wrongly rejected absentee ballots became increasingly apparent, Coleman hardened his position. He argued that a judicial contest of the election, after completion of the recount, was the only proper forum for counting previously rejected absentee ballots. ⁸⁶ On Friday December 12, the day the State Canvassing Board reiterated more formally its request that local officials review their rejected absentee ballots, Coleman announced that he would go to the Minnesota Supreme Court for an order to block the inclusion of these ballots in the certified result of the recount. ⁸⁷ (Coleman filed his suit the following Monday, December 15.) If the court would not grant this relief to keep these ballots out of the recount entirely, then as a back-up Coleman requested that the court set ground-rules to make sure that (a) the treatment of absentee ballots was consistent across the state's counties and (b) the handling of these ballots preserved the possibility of un-counting any that subsequently were determined to have been improperly counted. ⁸⁸

On December 18, by a sharply divided three-to-two vote (with Chief Justice Magnuson and Justice G. Barry Anderson recusing themselves because of their membership on the State Canvassing Board), the Minnesota Supreme Court granted a version of Coleman's back-up request. ⁸⁹ The court's ruling was not exactly what Coleman had contemplated. Still, it evidently was designed to assure uniformity and to protect Coleman's interest that no ballot be counted that he believed had been properly rejected. The order stated that local election officials lacked statutory authority to amend their canvassed returns to reconsider initially rejected absentee ballots; in this respect, the majority of the court adopted Coleman's position. ⁹⁰ In so ruling, the majority of the court rejected the applicability of section 204C.39, which provides that county canvassing boards may correct “an obvious error in counting or recording of the votes for an office.” ⁹¹ As the court majority explained in a subsequent opinion, it did not believe that an error in determining an absentee ballot to be disqualified for one of the four reasons set forth in section 203B.12 to be an error in “counting or recording a vote” under 204C.39. ⁹²

Even so, in an apparent effort to adopt a compromise position, the court majority determined that it had authority to require the counting of ballots if the relevant local election officials, with the concurrence of both candidates, agreed that the ballots had been wrongly rejected and should be counted. ⁹³ Accordingly, the court majority ordered the adoption of a procedure whereby the local election officials and the two candidates would review each of the still-uncounted absentee ballots:

It was immediately evident that this procedure permitted each candidate to veto a ballot that the local election officials themselves now determined had been wrongly rejected on Election Day. Consequently, it was equally apparent that each candidate might attempt to exercise this veto power strategically, vetoing ballots cast in precincts favorable to the candidate's opponent. The court majority added an admonition to its order, reminding the candidates of their obligation to exercise this veto power only when they had a good-faith belief that the local officials were now incorrect that they had wrongly rejected a ballot (and thus the candidate in good faith believed that the original rejection had been proper under the law):

The court majority evidently hoped that its order fairly accommodated the competing interests of (a) including within the recount total all previously rejected absentee ballots for which there could be no reasonable dispute as to their entitlement to be counted and (b) postponing for the eventual judicial contest of the election all previously rejected absentee ballots about which there might be a reasonable dispute.

The court majority's order, however, provoked strongly worded dissents from Justices Page and Paul Anderson. Page began his by quoting Stalin that it is “completely unimportant” who votes but “extraordinarily important” who counts the votes. ⁹⁶ Paul Anderson was somewhat less provocative in quoting the playwright Tom Stoppard in the same vein: “It's not the voting that's democracy; it's the counting.” ⁹⁷ Both dissenters argued that the natural interpretation of section 204C.39, with its language permitting the correction of “obvious errors in counting or recording the votes,” entitled local election officials to rectify what they themselves now believed to be “obvious errors” in rejecting absentee ballots—and to do so without each candidate having a veto power over these official error-correcting decisions. ⁹⁸ Thus, both dissenters agreed with Franken's position that the local officials had authority to undertake this error-correction on their own initiative and that the State Canvassing Board was obligated to accept any such amended returns from the localities (unless the amended returns were challenged in court by a candidate under procedures set forth in section 204C.39).

The Minnesota Supreme Court's 3–2 ruling to adopt its “candidate veto” order, fabricated out of thin air, stands as the low point in the entire eight-month saga of the dispute over the vote count in this U.S. Senate election. ⁹⁹ For one thing, it was the only significant non-unanimous ruling by an authoritative statewide body during this entire eight-month period. Second, the 3–2 split appeared to fall along ideological, if not exactly partisan lines, in a way that arguably appeared that each of the five Justices was adopting a position favorable to the candidate the Justice was most predisposed to support in this post-election dispute. The two dissenters were, in the eyes of many, the two most liberal of the five. Two members of the three-Justice majority were Pawlenty appointees with strong Republican ties (and the two most conservative of the five): Justices Gildea and Dietzen. Justice Helen Meyer, appointed by Jesse Ventura (the state's former Independence governor), was widely regarded as the pivotal member of this five-Justice panel and viewed as the one who developed the “candidate veto” compromise; it was she who signed the order on behalf of the court. ¹⁰⁰ Even if attribution of political motives on the part of these five Justices was inaccurate, the fact remains that the appearances created by this 3–2 split made this attribution possible. In this respect, the 3–2 split brought back memories of the U.S. Supreme Court's 5–4 decision in Bush v. Gore—or the earlier 4–3 split of the Florida Supreme Court in that case.

But even apart from the unseemliness of the 3–2 split and whatever the underlying motives might have been, the substance of the “candidate veto” order came under immediate and sustained criticism. Echoing the dissents, newspaper columnists and other media commentators complained that it gave the candidates too much power over the counting of ballots. ¹⁰¹ It was not a procedure contemplated in the statutes themselves and thus had not been vetted through the legislative process. It might have been better if the court majority had ruled the previously rejected absentee ballots outside the scope of the recount altogether, leaving them entirely to the eventual judicial contest. Or else the court majority could have adopted the dissents' position. But the middle-ground compromise ended up pleasing virtually no one and laid the ground for some difficulties that emerged during the subsequent contest.

E. Implementing the court's 3–2 “candidate veto” order

The court's order came just as Franken was overtaking Coleman in the review of the challenged ballots from the recount, underway before the State Canvassing Board. Thus, while Franken previously needed rejected absentee ballots to be counted in order to have a chance of prevailing, his interest now shifted to limiting the addition of uncounted ballots in order to preserve his new-found lead among counted (and recounted) ballots. Still, since Franken had been the one pushing for the inclusion of wrongly rejected absentee ballots, he could not easily walk away from that position. (To do so would have presented a public relations problem.) In the aftermath of the court's order, his side announced that it would agree to accept the counting of all absentee ballots that the local officials themselves identified as wrongly rejected—as long as Coleman would do the same. In essence, Franken proposed that the two candidates waive the veto power that the court's order had given them. This proposal was substantively the same as the one that Franken had argued for in the court's proceedings (and the one that the two dissenting justices had embraced). ¹⁰² Coleman, however, rejected this proposal.

As might have been anticipated, the process of reviewing absentee ballots—with both sides entitled to exercise their veto power under the court's order—did not go smoothly. Behind by forty-nine votes at this point (after the recount of all initially counted ballots was complete), Coleman wanted the counting of 654 previously rejected absentee ballots in addition to the 1,346 that local officials had identified as wrongly rejected. The Secretary of State's office said that Coleman had missed an agreed-upon deadline for raising the issue of additional ballots that the local officials themselves had not identified. ¹⁰³ Franken refused to consider any of the 654, considering them as being outside the process set up pursuant to the Minnesota Supreme Court's 3–2 order. ¹⁰⁴ Franken himself had eighty-five additional ballots that he thought had been wrongly rejected despite the local officials' determination to the contrary, but his request to have the local officials reconsider these ballots (unlike Coleman's) was timely under the agreed-upon deadline. ¹⁰⁵

On New Year's Eve, Coleman went back to the Minnesota Supreme Court, seeking an order that would have required consideration of these 654 ballots. ¹⁰⁶ On January 5, the court—this time with its five participating members unanimous (Chief Justice Magnuson and Justice Barry Anderson still recusing)—flatly rejected Coleman's request. The court succinctly explained that its previous order “implicitly recognized that any agreement among the parties was voluntary and, absent such an agreement, resolution of those disputed ballots would need to await an election contest.” ¹⁰⁷ Since Franken would not agree to the inclusion of the 654 disputed ballots, these ballots were “the proper subjects of an election contest.” ¹⁰⁸

Meanwhile, while Coleman's motion was pending before the court, the two candidates managed to agree on the counting of 933 ballots among the 1,346 identified by local officials as wrongly rejected. These ballots were opened and counted on January 3. These ballots broke sharply in favor of Franken, and extended his lead to 225 votes. ¹⁰⁹ Two days later, the same day that the court rejected Coleman's request to order further consideration of additional ballots, the State Canvassing Board certified this 225-vote victory for Franken. ¹¹⁰

A. The panel

On January 6, the very next day after certification of Franken's victory by the State Canvassing Board, Coleman filed his judicial contest of the election. Under Minnesota law, this contest must be heard by a three-judge panel appointed by the state's Chief Justice. ¹¹¹ Because Chief Justice Magnuson recused himself due to his participation on the Canvassing Board, the authority to appoint the panel fell to Justice Alan Page as the next most senior Justice on the Supreme Court. He picked Elizabeth Hayden, Denise Reilly, and Kurt Marben. ¹¹²

Justice Page's selection of these three judges must be considered the most important—and most laudable—decision of the entire Coleman v. Franken saga. It was instantly visible to Minnesotans that this panel was “tripartisan” and thus evenly balanced with respect to Democrats, Republicans, and Independents. ¹¹³ Judge Hayden had been appointed by Governor Rudy Perpich, who was from Minnesota's version of the Democratic party (Democratic-Farmer-Labor or DFL). Judge Reilly had been appointed by Republican Governor Arne Carlson. Most interestingly, Judge Marben had been appointed by Governor Jesse Ventura, an Independent, and thus Judge Marben might have been perceived as the potential tiebreaking vote between his two co-panelists. ¹¹⁴

No tie-breaker, however, proved necessary. The three-judge panel was unanimous throughout the entirety of its proceedings, speaking literally with one voice in all of its orders. Thus, having equal representation on the panel from all three political backgrounds—Democrat, Republican, and Independent—made all of its unanimous rulings inherently non-partisan (or at least evenly tri-partisan, which amounts to essentially the same thing). Although Justice Page has not spoken publicly about his selection of these three, one must surmise that he very much had in mind the visible political balance he was able to achieve. ¹¹⁵

It is also noteworthy that the three judges came from three different parts of the state and had not served on the bench with each other. ¹¹⁶ Although one could not know exactly what personal chemistry would develop among this judicial triumvirate, one could hope that their relative unfamiliarity with each other would put them all on best behavior—and thus predispose them to seek consensus wherever possible. Appellate judges, especially supreme court judges, who sit together on politically charged cases become predisposed to disagree with each other; these cases almost always produce strongly worded dissents. But the fact that the three judges were brought together from different regional courts for the single purpose of deciding an important election case, and selected so that they would collectively make a balanced panel, might have made each judge be careful to avoid looking like the first to act “politically” rather than legally. Whether Justice Page intended it or not, the geographic as well as political diversity within this three-judge panel probably increased the likelihood that they would work hard to find common ground and thus avoid dissenting votes. In any event, that's how it turned out.

B. The judicial contest and the Senate

Coleman's initial Notice of Contest was essentially a placeholder, filed immediately after the Canvassing Board's certification of Franken's victory. ¹¹⁷ Franken, in turn, quickly filed a motion to dismiss the case, arguing that the court lacked jurisdiction because the U.S. Senate had the exclusive authority to decide challenges to the propriety of Franken's certified victory. ¹¹⁸ In its first ruling, which was unanimous (as all of its decisions would be), the three-judge panel quite properly rejected Franken's argument. The court observed that their proceedings would only be preliminary to the eventual power of the U.S. Senate to decide which candidate to seat and, under Minnesota law, the judicial contest was necessary to complete the state's determination of which candidate to submit to the Senate. Indeed, the panel particularly observed that the issue of absentee ballots had been left unresolved by the administrative recount and the litigation ancillary thereto. Thus, as the Minnesota Supreme Court had ruled in its January 5 order, the three-judge panel declared that the judicial contest would be the forum under Minnesota law for resolving the dispute over absentee ballots. ¹¹⁹

In light of all the rulings that Coleman subsequently would lose, it is worth remembering that this very first order from the court made clear that these three judges would give him a fair chance to prove his case. The court indicated that it was sensitive to the concern that some of Coleman's allegations were more vague than desirable. Still, he had submitted enough allegations with sufficient specificity, particularly involving the issue of absentee ballots, to indicate that he was entitled to proceed with mustering evidence to support his claims. Moreover, the court recognized the public interest at stake in giving Coleman a fair shot to prove his case: “The Court strives as its ultimate goal to conduct the proceedings in such a way that the public will have faith in the electoral process and confidence in our judicial system.” ¹²⁰

For Franken, the inability to dismiss the judicial contest before it even got underway meant that he would have to wait for its resolution in order to take his Senate seat. The Senate had made clear that it would not seat him, even temporarily, without the presentation of a certificate from Minnesota. ¹²¹ But Minnesota law provided that Franken could not receive this certificate as long as the judicial contest remained pending. Franken tried to convince the Minnesota Supreme Court to permit a temporary certificate, but the court unanimously said no. ¹²²

C. Preparing for trial

The trial was scheduled to start January 26. Prior to trial, Coleman and his team made several decisions that proved fateful for his prospects of winning his case. Perhaps nothing he could have done would have put him in a position to persuade the three-judge panel that the law called for the counting of many more absentee ballots than the court ultimately agreed to count; and it is even less likely that counting more ballots would have enabled him to overcome Franken's 215-vote margin at the start of trial. Still, the decisions Coleman made in advance of trial appear now—with the benefit of hindsight—to have reduced his odds of success. The first decision was the most consequential, because it affected the others. It was to put Joe Friedberg, who had not been involved in the recount, in charge of presenting Coleman's case to the three-judge court. ¹²³ Friedberg was a prominent criminal defense attorney in Minnesota and a friend of Coleman's, although a Democrat who said he would “do anything for Norm, except vote for him.” ¹²⁴ But Friedberg was not experienced in litigating election contests, and it showed.

Coleman's effort to convince the court to count more absentee ballots would, broadly speaking, involve two sources of law: (1) the relevant provisions of Minnesota's statutes governing the absentee voting process; and (2) the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The statutory provisions are quite complicated, intricately intertwined with one another, and technical in their many details. Parsing the statutory provisions would require, for example, figuring out how “complete” a voter's or witness's address must be on the absentee ballot envelope in order to qualify the ballot to be counted. Would a missing zip code suffice to disqualify the ballot if the rest of the address was present? What if both the zip code and name of the city were missing, but local election officials could figure out the location from just the street address?

Moreover, the problem of partially complete addresses was just one category among a myriad of different interpretative issues that would arise under the relevant statutory provisions. Others concerned the voter's or witness's registration status, or the notarization of a voter's signature, or the circumstances in which the absentee ballot was delivered to (or returned by) the voter. Overlaying all of these fact-intensive interpretative questions concerning the application of the statute to various “events on the ground” was a basic issue of whether the statute required the absentee ballot envelope objectively to meet a certain standard of compliance in order to qualify for counting, or else whether the statute permitted local officials subjectively to exercise a certain degree of judgment or discretion in deciding whether a ballot qualified for counting.

The primary relevant statute, 203B.12, says that local officials must be “satisfied” that an absentee ballot meets the relevant requirements. ¹²⁵ The word “satisfied” suggests that the local officials are entitled to exercise a certain degree of subjective judgment or discretion in applying the relevant criteria to determine whether an absentee ballot qualifies for counting. But in a separate sentence, the same statute says that local officials must reject a ballot if they “find” that its voter “failed” to meet one of the specified requirements. ¹²⁶ In contrast to the word “satisfied,” the word “find” suggests an objective standard that the ballot itself must meet to be counted.

The complexity and multiplicity of the statutory interpretation issues, combined with Friedberg's inexperience with election law, caused Friedberg to emphasize Equal Protection in his initial presentations of Coleman's case to the trial court. ¹²⁷ Even with respect to the statutory issues that Friedberg could not avoid, he chose to paint with an extremely broad brush, invoking the idea of “substantial compliance” in an attempt to justify the counting of any absentee ballot that might be remotely acceptable. In doing so, Friedberg failed to offer some precise analytical distinctions under the statute that the trial court, in its desire to be careful, might have found persuasive. Moreover, Friedberg's impressionistic style extended beyond just his legal arguments, to the underlying evidence in the case. He seemed unconcerned with pinning down the eligibility of specific ballots, preferring rather to make a generic equitable point about treating similar ballots similarly. The overall impression Friedberg conveyed was one of analytical and evidentiary sloppiness, not cogency with respect to a combination of law and facts that would add up to a winning case.

D. Coleman's failure to satisfy the trial court's standards

Coleman's rather cavalier approach to proving the relevant facts for each rejected absentee ballot, as demonstrated in his Motion for Summary Judgment, ¹²⁸ undermined his case throughout the trial and was evident from the very first day. Friedberg attempted to introduce into evidence photocopies of the ballot envelopes, rather than the envelopes themselves, and Franken's attorneys blocked that effort by showing the court that some of the photocopies omitted crucial information. ¹²⁹

Friedberg was also hoping that the court would rely on evidentiary presumptions to favor the counting, rather than the rejecting, of ballots in circumstances where it was factually unclear whether the ballots were valid under Minnesota law. For example, his legal team wanted the court to presume that a ballot was delivered on time, even if an official marked it late and there was no other evidence one way or other. Similarly, Coleman wanted the court to presume that voters and witnesses were registered, unless evidence showed the contrary, and that the voter had not cast another ballot. Coleman even wanted the court to presume, from the face of the ballot envelope itself, that its signature was valid—without any testimony from the voter or an election official corroborating its validity. ¹³⁰

The court would not accept that approach to the facts. On February 3, in a series of pronouncements that included a denial of Coleman's Motion for Summary Judgment, the court made clear that it would count all identified ballots that were proven to have been “legally cast and wrongly rejected,” ¹³¹ but individualized proof would need to be forthcoming and would not be presumed. In one of its rulings that day, the court limited Coleman's case to “those ballots that were specifically disclosed to [Franken] by name as of January 23,” so that Franken would have an opportunity to prepare for trial on those ballots. ¹³² This ruling confined Coleman to presenting evidence on the roughly 5,000 ballots he presented as part of his Motion for Summary Judgment, thereby precluding his broader effort to count as many as 12,000 absentee ballots.

A week later, on February 10, the court elucidated what Coleman would need to do for each absentee ballot in order to get the court to count it. There would have to be testimony—from the voter or another competent witness, in the form of an affidavit or presented in open court—that the voter satisfied the various statutory requirements: (1) did not vote a separate ballot in the election, (2) signed both the ballot application and the ballot envelope, (3) was registered, and (4) secured a witness who was registered or authorized to administer oaths. ¹³³ The court's elucidation of how Coleman could satisfy this evidentiary burden came in the form of an order granting in part, but also denying in part, a motion for summary judgment submitted by a group of 61 individual voters allied with the Franken campaign. The court granted the motion for 24 of these voters because their affidavits presented unrebutted testimony on all of these statutory requirements. But the court denied the motion with respect to the remaining voters because their affidavits failed to cover one or more of the necessary statutory elements. Despite the roadmap that the court provided the parties in this ruling, Coleman never put himself in a position to comply. ¹³⁴

Coleman's prospects for prevailing deteriorated even further on Friday, February 13, when the trial court issued an order specifying in great detail its view of the statutory law that governed whether or not to count previously rejected ballots. Having enumerated nineteen different kinds of factual situations involving rejected absentee ballots, the court explained why its view of the statutory law precluded it from counting the ballots in most of these situations. Since Friedberg had hoped that the “substantial compliance” doctrine would permit the counting of ballots in virtually all these situations—and because the trial court's February 13 order clearly rejected that argument—Friedberg needed to rethink this strategy if Coleman were to have any chance of winning. ¹³⁵

The court's February 13 order was widely regarded as pivotal when it was issued, and the Coleman team certainly treated it as such. They could have responded to it by hunkering down and trying to prove the validity of as many ballots as they could under the court's now-enunciated principle of hewing tightly to the statutory rules. After all, in their Motion for Summary Judgment, they had identified over 2,000 ballots that they could argue met the exact terms of the statute, without relying on the doctrine of substantial compliance. ¹³⁶ They could now get to work to introduce the evidence necessary in the court's view to meet this legal standard.

Maybe, too, if they were careful about it, they could down the road ask the court to revisit only one or two targeted categories, by making it clear to the court that they were abandoning any attempt to prevail on expansive and indeterminate notions of “substantial compliance” and Equal Protection. A modest motion for partial reconsideration along these lines would have opened up the possibility of counting over 1,500 more ballots (according to the numbers provided in the Motion for Summary Judgment), without requiring the court to repudiate entirely its now-announced approach to the case.

The Coleman team responded differently. Castigating the “Friday the thirteenth” order, evoking images of a horror story, they immediately asked the court to reconsider it entirely—a request which, naturally, was immediately denied. They then went about trying to show that the legal standard in the court's February 13 order compounded the alleged Equal Protection violation of equivalent absentee ballots being treated differently. ¹³⁷

Their approach to Equal Protection was not a narrow one. They did not confine it to ballots for which official error was the responsible cause of noncompliance in the first place. ¹³⁸ Instead, they continued to argue that, as long as some localities had wrongly used an unduly lenient standard on Election Night to count ballots for which voter error was the exclusive cause of the noncompliance, then Equal Protection now obligated the court to count all properly rejected ballots that fit within the inappropriately lenient standard of these lax localities.

That expansive approach to Equal Protection was doomed to failure. The three-judge panel had already indicated that it was skeptical of any Equal Protection argument. Back on February 3, in denying his Motion for Summary Judgment, the court had put Coleman on notice of this skepticism: “The Court questions the applicability of Bush v. Gore to the issues presented in [this case, because]…the objective standards imposed on absentee ballots by Minn. Stat. § 203B.12 distinguishes [sic] the election systems of Minnesota and Florida.” ¹³⁹ In light of this skepticism, Coleman would have had to explain that even though the Minnesota statute was clear in not excusing voter error, it was unclear on what to do about official error—because the statute did not contemplate that the government would make mistakes that prevented voter compliance. The statute simply did not address this problem, and in the wake of local divergence on what to do without this guidance, Equal Protection could step in to assure fair treatment of voters who fell within this small statutory gap. But Coleman never developed this line of thinking.

In pursuing Equal Protection even after February 13, Coleman focused on categories of rejected ballots for which voter error, rather than official error, was most obviously the responsible cause. In his quest for the Holy Grail, he held up ballots rejected for lack of a valid witness as a principal example. Some localities apparently were willing to count ballots even though they lacked a valid witness—in contravention of the statutory requirement—although other counties properly enforced this requirement by rejecting ballots without a valid witness. The voter, of course, was entirely responsible for failing to secure a valid witness. Yet Coleman wanted to show the extent of the local variation in accepting or rejecting ballots in this situation, and as part of his submission he wanted to introduce the testimony of a statistician to analyze this variation. ¹⁴⁰

On February 18, moving from skepticism to antipathy toward Coleman's Equal Protection argument, the court precluded Coleman from offering this statistical evidence: “It is irrelevant whether there were irregularities between the counties in applying Minnesota Statutes § 203B.12, subd. 2. prior to this election contest.” ¹⁴¹ All that mattered, according to the court, was what the statute provided, and the court itself would enforce that statutory standard to all previously rejected ballots brought before it. ¹⁴² In other words, if it was clear that localities should have rejected ballots for lack of a valid witness, then it would make no difference to the court's consideration that some counties on Election Night improperly had adopted a lenient standard for ballots in this situation. So much for Coleman's Equal Protection claim to the contrary.

E. Coleman's pivot: Unlawful ballots that were counted

Since Coleman could not convince the court to invoke Equal Protection to justify counting more ballots than the statute permitted, he began exploring the possibility of trying to convince the court that Equal Protection required voiding the outcome of the election altogether. The theory was that the court's February 13 order now established that many ballots had been counted on Election Night in violation of state law, a number far exceeding the 215-vote margin that the Canvassing Board had certified on January 5. It was not physically possible to “uncount” these invalid ballots. They had been detached from their envelopes on Election Night and irretrievably commingled with the valid ballots. Although there was no way to determine whether these invalid ballots had been cast for Coleman or for Franken (or for Barkley, the Independence Party candidate), their volume was allegedly large enough to inevitably taint the result. The only remedy, therefore, apart from some sort of an attempt at a statistical adjustment (for which Minnesota law did not seem to provide), would be to declare the election result null and void. ¹⁴³

The court itself could not order a new election. That decree would have been beyond the court's authority in a contest of a U.S. Senate election under the relevant provision of Minnesota's code. ¹⁴⁴ But at least theoretically the court could declare itself incapable of adjudicating which candidate had received the highest number of valid votes—because of the irretrievable presence of so many invalid ballots—and thus rule that no candidate was entitled under Minnesota law to receive a certificate of election. ¹⁴⁵ Equal Protection, moreover, could require that the court take that position as the only available way to undo the opposite treatment of identical ballots, especially since the court had emphatically determined that state law would not permit achieving equal treatment by now counting clearly invalid ballots.

The political consequences of a judicial nullification of the election on this ground would be unclear. Perhaps the state legislature would intervene to order a new election. Perhaps the U.S. Senate would take matters into its own hands. But those political considerations could not be the court's concern. As the court itself kept repeating, its jurisdiction was confined to identifying which candidate had received the highest number of lawful votes. The only question now was whether the court could perform this task, given the apparent fact of so many unlawful votes tainting the result certified on January 5.

Although this new void-the-election approach of Coleman's team might have had some promise in theory, it confronted two basic problems. One was factual. Were there really so many invalid ballots among those already counted? Maybe Coleman could show some counties that were improperly lenient with respect to ballots with invalid witnesses. But were there enough of these to cast doubt on Franken's 215-vote margin, or whatever the margin would end up being at the end of the trial? And as for Coleman's claim that some localities had been more lenient in matching voter signatures on envelopes and applications, would it turn out that any of the ballots already counted should have been rejected for a signature mismatch? The specter of a tainted election similar to Washington's gubernatorial election in 2004 (where over a thousand concededly invalid ballots dwarfed a roughly 100-vote margin of victory) was theoretically interesting, but it had yet to be proven. ¹⁴⁶

More fundamental, however, was a procedural roadblock under Minnesota law that prevented any proof of this kind. In 1975, the Minnesota Supreme Court had decided a case, Bell v. Gannaway, ¹⁴⁷ which seemed to say that a candidate could challenge the validity of an absentee ballot based on improper or missing information on its envelope only before the ballot was counted. Once the ballot was removed from its envelope and commingled with other counted ballots, any such challenge was procedurally too late. ¹⁴⁸

Coleman made several arguments in an effort to get out from under the precedent of Bell v. Gannaway. The relevant statute had been amended since that precedent, and arguably the language was different enough that the precedent was no longer applicable. As a practical matter, the opportunity to challenge absentee ballots before they were counted on Election Night no longer existed in 2008 in the way it had over a quarter-century earlier. Moreover, the scale and circumstances of Bell v. Gannaway were far different from Coleman v. Franken. Bell involved a single ballot in a single precinct in a small-town election. Coleman v. Franken, by contrast, involved a candidate's putative obligation to challenge in advance potentially thousands of ballots all around the state in order to preserve the integrity of the outcome in a U.S. Senate election, obviously one of the most consequential of those that the state administers.

None of these potential distinctions between Bell and the present case, however, would matter. Bell was straightforward in its language that a challenge not made in advance of counting was waived. Thus, reliance on Bell was an easy position for the three-judge panel to embrace, and doing so easily permitted the court to avoid the conundrum of going down an evidentiary road that might lead to an obligation to void the election—an obviously unpalatable result for a court to reach. Thus, it was not hard for Franken to convince the three-judge panel to follow the precedent of Bell. If that precedent were to be distinguished, with all the potentially unpalatable implications that might follow from doing so, it would have to be the Minnesota Supreme Court that would make that move. ¹⁴⁹

F. Coleman's insufficient evidence

In the end, Coleman's case simply fizzled out for lack of factual proof. He never submitted the kind of evidence that the court said was required to prove the validity of each previously rejected ballot. Before resting his case, Coleman finally got around to asking the court's permission for additional time in order to submit affidavits from voters attesting to the validity of their rejected ballots—precisely the kind of showing that would have satisfied the court's evidentiary standard. But on March 2, the day of Coleman's last witnesses in his attempt to prove he had won the election, the court denied his request as untimely. ¹⁵⁰

Consequently, when it came time to sum up his case, Coleman was left in the same position in which he had started before trial: with no choice but to argue that the court should rely on evidentiary presumptions to assume the validity of ballots that the local officials had rejected. In his final brief to the three-judge trial court, filed on March 17, Coleman asked the court to adopt seven specific presumptions:

A voter receiving a Registered Voter ballot is presumed registered.

With the help of these presumptions, Coleman believed he could show that 1,360 ballots satisfied the court's February 13 order. But, of course, the court would not give him the benefit of all these presumptions.

G. The trial court's final order and legal reasoning

When the three-judge panel issued its final order on April 13, it was largely a fait accompli. The court confirmed the counting of additional ballots under its moderately lenient standard, as announced in its March 31 ruling. The court also confirmed, however, that its leniency would not extend to counting the ballot of an unregistered voter: “Even if a voter's failure to register is due to official errors or omissions, votes submitted by non-registered voters are not legally cast.” ¹⁶⁵

The final ruling, not surprisingly, definitively rejected Coleman's effort to distinguish Bell v. Gannaway and set aside the election on the ground that the number of invalid ballots exceeded Franken's 312-vote margin of victory. The court's rejection of this line of argument could not have been more emphatic: “Minnesota law does not provide a remedy for Contestants' claim that absentee ballots were wrongfully accepted and counted.” ¹⁶⁶ The court added that Coleman had procedurally “waived” this argument “by failing to identify specific ballots” that he believed cumulatively caused Franken to be wrongly identified as the winner. ¹⁶⁷ But it would seem that this procedural waiver was ultimately inconsequential, and even if Coleman had specified exactly which ballots he thought were invalid—and enough of them—the answer still would have been that “no remedy exists under Minnesota law,” because of Bell, once the ballot has been opened and counted. ¹⁶⁸

The final ruling also definitively rejected Coleman's Equal Protection argument as a reason to count additional ballots, beyond those valid under Minnesota law. While this result was not at all surprising given the court's earlier pronouncements on Equal Protection, there did emerge a little-noticed inconsistency in the final ruling's Equal Protection analysis. On the one hand, the court's main reason for rejecting Coleman's Equal Protection argument remained its view that Minnesota law, unlike Florida's in Bush v. Gore, was unambiguous. On the other hand, the court observed that in some respects Minnesota law left it to local officials to decide whether or not to invalidate ballots on particular grounds. ¹⁶⁹

The issue of local discretion in evaluating absentee ballots had emerged most clearly during the trial in the context of verifying a witness's registration status. It turned out that some localities had the technological capacity to conduct this verification before counting an absentee ballot on Election Night, while other counties did not have this capacity. ¹⁷⁰ Part of the explanation for this difference in technological capacity was that Minnesota statutes gave local counties the authority to establish county-wide absentee ballot boards, rather than determining the validity of absentee ballots at each precinct on Election Night. ¹⁷¹ The counties with absentee ballot boards generally were able to access the state voter registration database to determine whether a witness was registered, whereas officials at each precinct on Election Night generally were unable to do so. ¹⁷²

Because state law gave localities the choice on whether to establish an absentee ballot board, it also seemed as if state law implicitly gave localities the choice on whether or not to check a witness's registration status before deciding to accept or reject a ballot. In other words, it was acceptable for election officials to look at an absentee ballot envelope and, if the witness listed a Minnesota address that did not look irregular, simply assume that the witness was registered. This procedure is what the three-judge court itself had done as part of its March 31 order. But because this procedure was discretionary, it was equally okay under Minnesota law (according to the court) if localities took the opposite approach and, using available access to the state's registration database, checked a witness's registration status and then invalidated ballots if the witness was unregistered.

The existence of local discretion is not necessarily problematic under Bush v. Gore. The majority opinion there said as much, pointing out that different localities might use different technologies to administer elections. The potential problem under Bush v. Gore, however, was how clearly state law contemplated local variation in the counting of ballots in a statewide election due to local discretion. If the discretion was the byproduct of an ambiguous state statute, as the local variation in treatment of dimpled chads was in Florida, then the local discretion was potentially more troublesome under Bush v. Gore. Thus, for the trial court in Coleman v. Franken, the question was whether the discretion in verification of a witness's registration status was the product of a clear or an ambiguous state statute.

The trial court obviously wanted “clear” to be the answer, but it was tricky for the court to say so. Insofar as the Minnesota statute seemed to be clear on the issue of a witness's registration status, it seemed to be that the witness actually being registered was clearly required—not that it was clear that local officials had the discretion to waive this requirement when they lacked the technological capacity to check before deciding whether to count the ballot. But if the local officials really had this discretion under the statute, then it seemed as if the statute was at least a little bit murky on this discretion point.

The trial court's effort to have it both ways—both clarity and authorized local discretion to disregard a witness's registration status—was not entirely successful. Regarding the differential access to technology, the court asserted: “By all accounts, election officials performed their duties on Election Day to the best of their abilities, given the resources available to them.” ¹⁷³ In an effort to distinguish Bush v. Gore on this point, the court added: “In light of the state's goal of enfranchising voters whenever possible under the law, election officials must be vested with reasonable discretion to address election issues unique to their jurisdictions while still operating under the uniform standards of Minnesota law.” ¹⁷⁴

But it is not obvious at all how this maximum-enfranchisement goal distinguishes Bush v. Gore. Florida also had a goal of maximizing voter enfranchisement; that was the policy underlying its general “intent of the voter” standard for evaluating dimpled and hanging chads. ¹⁷⁵ Yet it is precisely this vague standard that got Florida in trouble with the majority of the U.S. Supreme Court.

Nor was it accurate for the trial court in Coleman v. Franken to suggest that localities without access to the state's voter registration database on Election Night faced an issue “unique” to them. ¹⁷⁶ If anything, the baseline expectation in Minnesota was that the validity of absentee ballots would be determined at the precinct on Election Night and that these precincts lacked access to the state's registration database. Therefore, in many localities officials would simply be looking at the envelope to see if a witness's address had a superficial irregularity. If not, the ballot would be counted. In other words, the localities with the ability to check the registration database were arguably the exception, not the rule. This situation made it at least a little unclear under the statute, given Minnesota's professed desire of maximizing voter enfranchisement, whether localities with enhanced technological capabilities should be using them to invalidate ballots that routinely would be counted throughout the rest of the state. And if the statute was at least a little bit unclear on this point, then did Bush v. Gore kick in and require statewide uniform treatment of equivalent ballots in the absence of unambiguous authorization for the local variation?

The trial court never really confronted this basic question. It kept repeating: “The state-wide standards governing absentee voting in Minnesota are uniform and explicit and apply in every county and city in the state.” ¹⁷⁷ Yet elsewhere in its opinion it acknowledged that counties varied in whether they verified a witness's registration. The court's effort to reconcile the different parts of its analysis of the Equal Protection issue did not hang together convincingly.

Moreover, given the discretion of local officials to count a ballot without checking a witness's registration, it could not be that a ballot was invalid just because the witness was unregistered. Rather, ballots with witnesses whose addresses appeared superficially regular were countable, even if the witness was not in fact registered. Being countable in this way distinguished these ballots from those cast by felons, which were inherently uncountable (in other words, intrinsically invalid) under Minnesota law. Therefore, if confined to those circumstances in which local officials exercised discretion as a result of an ambiguous state law, Coleman's Equal Protection argument would not require the court to count invalid ballots, like those cast by felons. Rather, so confined, the argument would only require the court to count ballots that the court itself had already determined to be countable—and some of which, pursuant to the March 31 order, the court had already counted. Yet, whether because of the way Coleman had presented his Equal Protection argument, or otherwise, the court was unable to see the distinction between the felon hypothetical and the real situation involving local variation on witness registration.

Still, it is unlikely that a more analytically coherent opinion from the three-judge panel on Equal Protection would have changed the court's bottom-line conclusion. Even accepting that the local discretion concerning the checking of witness registration was a by-product of statutory ambiguity, the court most probably would have concluded that the discretion was justifiable in light of different local resources and other different local circumstances. Statutory ambiguity as the cause for this local discretion might make this argument harder, but it does not make it impossible when the facts support the underlying reasonableness of the local variation. Based on the trial testimony, and its predisposition to support the professional judgment of the state's local election administrators, the three-judge panel would have found a way to reach the same conclusion even if forced to travel down a somewhat different analytical path to get there.

A. The decision to appeal

Coleman did not need to appeal the three-judge trial court's final ruling. Instead, he could have gracefully conceded the election at that point (as did Dino Rossi, Republican candidate for governor of Washington in 2004 when the trial court in that disputed election issued its final ruling against him). ¹⁷⁸ Coleman had received a full and fair hearing before a transparently impartial panel of conscientious jurists. The only reason to appeal would be to get a different group of judges to reach a different result on the same issues. If Coleman were to prevail, would it be because the different judges were able to see the merits of the case more objectively than the three-judge panel, or rather because he was fortunate to find a set of judges more predisposed to rule in his favor?

Recall that the Minnesota Supreme Court had split 3–2 back in December in its ruling that adopted the “candidate veto” procedure. That ruling had been a partial victory for Coleman, who had sought the supreme court's intervention. The majority for that ruling was certainly more pro-Coleman than the two justices in dissent, who had embraced Franken's view of that issue. Thus, maybe Coleman could eke out another narrow 3–2 victory, if only to get a partial remand to the trial court that would require additional evidentiary proceedings with respect to some of the ballots in dispute. (Delay, after all, at least would keep Franken out of the Senate while the dispute dragged on, given the supreme court's earlier decision to refuse Franken a certificate until the case was over.) Such a 3–2 reversal of the unanimous trial court would not have been pretty—it would reek of partisanship—but the law unquestionably gave Coleman a right to appeal, and thus he made a stab at it. Of course, there was also the theoretical chance, however slim the odds, that the Minnesota Supreme Court might reverse the unanimous trial court decision by its own 5–0, or perhaps even 4–1, ruling. ¹⁷⁹

B. The arguments on appeal

As Coleman prepared his appeal, he had three basic lines of attack he could pursue: (1) Bell v. Gannaway, contrary to the trial court, was not an obstacle to ruling the election null and void on the ground that too many invalid ballots had already been counted; (2) the trial court adopted too narrow an interpretation of Minnesota's statutory law in identifying ballots eligible to be counted; and (3) and the federal Constitution required the counting of ballots that state law called for rejecting. On appeal, Coleman also added (4) a Due Process argument that he had not pursued in the trial court until late in the proceedings there.