- The Washington Times - Monday, January 26, 2009

ST. PAUL, Minn.

It’s been two months since the U.S. Senate election that pitted Democrat Al Franken against incumbent Republican Norm Coleman, but it’s still impossible to say who actually won.

Their contest enters a new phase Monday when a panel of three judges begins hearing Mr. Coleman’s lawsuit over a recount that left him out in the cold. Mr. Coleman argues that ballot irregularities and improperly rejected absentees are the reasons that Mr. Franken holds a narrow lead.

But legal scholars say it is Mr. Coleman who faces the bigger challenge, because Mr. Franken is sitting on a state-declared 225-vote lead, giving Mr. Coleman two hills to climb.

First, his lawyers have to produce proof of the irregularities and inconsistencies that they’re saying riddled the vote tally with fatal flaws. Then, if they meet that burden of proof, Mr. Coleman must make up enough votes to overtake Mr. Franken. But even Mr. Coleman’s lawyers acknowledge that the purported mistakes could raise Mr. Franken’s total.

“It’s an uphill battle” for Mr. Coleman, said Ned Foley, an Ohio State University political scientist who’s been monitoring Minnesota’s recount.

Mr. Franken, by contrast, mainly has to argue that decisions made so far - mostly by the state canvassing board - were correct.

Mr. Foley notes that while Mr. Coleman faces obstacles, he benefits from the fact that the trial is considered a “de novo” proceeding - Latin for “new trial” - meaning the judges can make decisions on the facts in the case without being bound by anything that’s happened in the past two months of recounts and legal wrangling over ballots.

“You are the single set of eyes to give finality in Minnesota to the election dispute,” Coleman attorney Tony Trimble stressed to the judges in a pretrial hearing last week.

Lead Franken attorney Marc Elias has argued that Minnesota is in what he called a “constitutional crisis” because it only has one U.S. senator in Washington. In a separate legal proceeding scheduled for Feb. 5, Mr. Franken will ask the Minnesota Supreme Court to order Gov. Tim Pawlenty, a Republican, and Secretary of State Mark Ritchie to issue him a temporary election certificate - a step both men have refused.

Mr. Coleman acknowledges the desire of Minnesotans “to see this moved along as expeditiously as possible,” but he insists there is a greater value in making sure that the election was conducted fairly.

No one on either side is willing to predict how long the trial might last.

At the end of last week, the judges denied a Coleman request for a sweeping, last-minute inspection of ballots at selected precincts across the state - a decision that could delay the conclusion of the trial. Mr. Coleman’s attorneys said their only alternative now is to issue more individual subpoenas of election officials and election-related paperwork from those precincts.

Whichever candidate loses the trial also has options that would drag out a resolution still more, including possible appeals to the Minnesota Supreme Court, federal courts or even the U.S. Senate.

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