In Senate trial, Coleman turns to Bush v. Gore

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ST. PAUL (AP) — The success of Norm Coleman’s lawsuit to reclaim a Minnesota Senate seat could depend on how willing the trial judges are to find a precedent in the Supreme Court ruling from another messy, political charged election battle: Bush v. Gore.

Republican Coleman’s greatest hope to overtake Democrat Al Franken’s 225-vote lead is his argument that about 11,000 rejected absentee ballots should be given another look by the judges.

The circumstances are different, but Coleman’s effort strikes the same legal notes as the Supreme Court lawsuit that handed George W. Bush a victory in the state of Florida and put him in the White House.

In the Minnesota trial, entering its second week today, Coleman’s lawyers have made similar arguments over and over.

“As part of this process, we have seen that different counties treated the same ballots differently so that voters whose votes counted in one county were rejected in another county,” said Ben Ginsberg, a Coleman attorney who was a key member of Bush’s Florida legal team in 2000. “In order to achieve equal protection under the law and enfranchise as many people as possible, we need to count all similarly situated ballots.”

In his opening statement, Coleman’s lead trial attorney Joe Friedberg warned the court that treating all absentee ballots the same is “the only way to avoid the Bush v. Gore problem.”

The three-judge panel in the Senate trial hasn’t tipped its hand on whether it buys that argument. There are four valid reasons under Minnesota state law for rejecting absentee ballots, and Franken’s lawyers argue that the vast majority of the remaining 11,000 uncounted absentees were properly rejected for one of those reasons.

Daniel Lowenstein, a constitutional law professor at UCLA, said he sees little precedent for the trial judges deciding that Bush v. Gore compels them to personally review all 11,000 rejected absentee ballots.

But Ned Foley, a professor of election law at Ohio State University, said that question has yet to truly be tested. Since the Bush v. Gore ruling, the Supreme Court has not cited the case again in any subsequent rulings — splitting legal scholars on whether it applies to state election disputes.

If it is going to apply to state elections, Foley said, then “the Coleman-Franken contest is the biggest Bush v. Gore case since the Bush v. Gore case itself, undoubtedly.”

The judges are expected to issue rulings as early as this week that could give a better idea of which approach they’ll favor. If Coleman loses his effort for a wide review of the rejected ballots, and his lawsuit fails, his argument seems tailor-made for a federal court appeal.

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