- The Washington Times - Sunday, April 19, 2009

ST. PAUL, MINN. (AP) - Republican Norm Coleman’s next and possibly last gambit for regaining his U.S. Senate seat will come before a Minnesota Supreme Court that seems built to his advantage: Five of the seven justices were put there by Republican governors.

But Coleman’s edge with the court, which is expected to receive the appeal this week of his election-lawsuit loss to Democrat Al Franken, isn’t all it seems.

Two of the GOP appointees will sit out the appeal because they helped referee the statewide recount. A third has drawn fire for past donations to Coleman’s Senate campaigns.

And the court as a whole has a history of nonpartisanship in election-law decisions.

While courts nationwide are being increasingly drawn into political disputes, few elections reach this stage. Fewer still have such stakes: A six-year Senate term vital to the Washington power struggle.

“These aren’t the kind of cases judges want to see come their way,” said Michael Pitts, a professor at the Indiana University School of Law in Indianapolis. “It’s tough to divorce what is a political judgment and what is a legal judgment.”

Kathleen Blatz, a retired chief justice of the high court, said she’s confident her former colleagues will reach a conclusion based on the law, not politics, in part because they know they’re under a microscope.

“You are aware that what you do will be criticized,” Blatz said.

In 2002, Blatz’s Supreme Court had to decide how to treat absentee ballots when Sen. Paul Wellstone died in the campaign homestretch. The court quickly ruled absentee voters were entitled to replacement ballots by request, but not automatically. As a practical matter, that meant Wellstone voters who didn’t act forfeited their Senate vote.

Coincidentally, Coleman was Wellstone’s opponent, and he wound up edging the Democrats’ fill-in candidate, Walter Mondale. A detailed court opinion issued six months after the ruling showed that justices confronted constitutional questions about the consistent treatment of voters _ similar to concerns Coleman wants the court to address anew.

Coleman is appealing a special three-judge panel’s ruling that Franken won 312 more votes in the 2008 election. The former senator argues that some local officials were more diligent than others about verifying whether voters complied with absentee ballot standards, causing thousands of ballots to be rejected that could have counted elsewhere. He plans to invoke the Constitution’s equal-protection clause.

Last week’s unanimous ruling by the three-judge panel said local officials used reasonable latitude in administering the election and equal protection doesn’t require “rigid sameness.”

A majority of the current court was selected by Republican Gov. Tim Pawlenty. However, two of them, Chief Justice Eric Magnuson and Justice G. Barry Anderson, served on the state Canvassing Board that adopted the recount rules and certified Franken as its winner, and they’ve recused themselves from the Senate court case.

One of the newest justices, Christopher Dietzen, is facing calls from left-leaning bloggers to step back, too, because he was a Coleman donor before joining the bench, including $500 in contributions to Coleman’s Senate fund.

Dietzen was not alone in making donations in his pre-judge days: Lorie Gildea gave to Coleman’s 1998 gubernatorial campaign and Helen Meyer wrote checks years ago to Democrats including Wellstone.

None of the justices would comment on their donations or their status in the case, a court spokesman said.

Suggestions that the contributions are grounds for disqualification bother Blatz, who said justices set aside their personal views all the time. Some election law and legal ethics scholars agree.

“It shouldn’t matter at all. Judges take an oath when they become judges to apply the law and the Constitution,” said Bruce Green, director of the Louis Stein Center for Law and Ethics at Fordham University School of Law. “It’s assumed that when they become judges that they call it fairly and are not influenced by their prior political engagements.”

In Minnesota, most judges reach the bench through gubernatorial appointment and must stand periodically for re-election. Although restrictions on judicial candidates expressing political views were recently loosened, the state hasn’t seen overt partisanship in its judicial elections yet.

Nationwide, election litigation has taken off since the turn of the century, according to an upcoming Stanford Law Review study by Loyola Law School professor Rick Hasen. He documented 361 cases that reached state or federal courts in 2004 and 297 cases last year, encompassing campaign finance and redistricting challenges as well as voting administration disputes. Before 2000, he said, the average was 94 cases per year.

Hasen said only a small percentage of those cases involved lawsuits by a candidate over the results of an election. As a result, case law directly applying to the questions in this election is limited. The most famous recent election case is Bush v. Gore, the much-debated U.S. Supreme Court ruling that effectively ended the 2000 presidential race. In its 5-4 decision, the court said “the problem of equal protection in election processes generally presents many complexities.”

Without many cases to consult, Minnesota’s Supreme Court might have room to maneuver.

“One of the problems when you don’t have precedent is that opens up the ability for judges to be much more creative and their creativity may reflect their partisan viewpoints,” said Pitts, the Indiana University professor. “Precedent can do a pretty good job of cabinning the partisan preferences of judges.”


On the Net:

Minnesota Supreme Court: https://tinyurl.com/cl9847

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