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Scott Wente, Published April 19 2009

Coleman relying on 'equal protection' in Senate case

ST. PAUL – Norm Coleman says a constitutional principle ensuring that all voters are treated equally drives his continuing U.S. Senate election fight.

The former senator said his appeal to the Minnesota Supreme Court about the 2008 election outcome, which he plans to file Monday afternoon or Tuesday morning, will offer a full airing of his key objection to the recent election trial.

He said the crux of the appeal will be that under the U.S. Constitution’s equal protection clause, there remain about 4,400 unopened absentee ballots that should be counted because similar ballots from other counties were counted.

“We think we’ve got a legitimate constitutional argument and believe strongly there are thousands of Minnesotans whose votes should be counted,” Coleman said in a Forum Communications interview.

The Republican claims that the way absentee ballots were handled differently across Minnesota violates the U.S. Constitution’s mandate that states cannot deny any person “equal protection of the laws.”

The equal protection argument also could be the basis for a federal election lawsuit, but Coleman has not said whether he would continue his legal fight if he loses his state appeal.

The three judges who presided over Coleman’s state court lawsuit – and who named Democrat Al Franken the election winner in a ruling last Monday – dismissed his equal-protection argument. They said differences in how county officials reviewed absentee ballots – such as whether they verified voter registration – do not rise to the level of an equal protection violation.

The judges said there is evidence to support Coleman’s claim that election officials made errors when deciding whether to accept some absentee ballots.

“Equal protection, however, cannot be interpreted as raising every error in an election to the level of a constitutional violation,” the judges wrote. “Although not ideal, errors occur in every election.”

Coleman disagrees.

“We’re talking about clear policy choices made by various election officials in counties to apply different standards,” he said. “It’s an election. They have to have a single standard by which you decide whether a ballot should be admitted or not.”

Much like he did early this year when he sued to challenge the statewide recount results, Coleman said his appeal will request that votes from a Franken-leaning Minneapolis precinct where ballots went missing be removed from the tally.

The Republican said he also will argue that votes were counted twice in some precincts, but said those two issues will play small roles in his appeal. The equal protection claim and a complaint that the judges used stricter guidelines for considering absentee ballots than was used on Election Night are Coleman’s key arguments.

Coleman has suffered procedural and legal defeats since the statewide hand recount started in November. He led the Senate race at the outset of the recount, by 225 votes, but Franken emerged from the recount on top and has padded his lead to 312 votes. The morning after the Nov. 4 election, when the Republican Coleman led, he urged Franken not to take the matter to court. Later, Franken took the lead in a recount of the state’s 2.9 million ballots.

Coleman acknowledged it will not be easy to convince Supreme Court justices to reverse decisions made by the three-judge panel.

“Clearly our burden is greater,” he said. “Clearly this is an uphill battle for our team. I recognize that.”

In preparation for the appeal, Coleman said he has played the role of editor and legal consultant. A former state solicitor general, Coleman is taking an active role in the legal fight. He spent recent days editing the legal documents that will spell out his arguments and discussing strategy with his election attorneys.

“I participate in the discussion,” he said. “I’m fully engaged in this. I read the (three judges’) decisions. We have a team of lawyers, and I consider myself part of that team.”

Coleman could have a legitimate case, said a national election lawyer following Minnesota’s Senate race.

“If (Coleman) can demonstrate that voters and their votes in different parts of Minnesota were treated differently in the counting process, that would be a very credible argument,” said Jan Baran, a Washington lawyer who has represented the Republican Party in federal election cases.

However, Baran added: “I don’t know how convincing their evidence is.”

The appeal comes as state and national Democrats have released broadcast advertisements and statements calling on Coleman to give up, clearing the way for Franken to obtain an election certificate and be seated in the Senate. Republicans, including the Senate GOP leader, support Coleman’s continued legal fight, but Coleman said no one is pressuring him to keep up the fight.

“I’m not getting pressured from my colleagues to prolong this for the sake of prolonging,” he said.

Wente works for Forum Communications Co., which owns The Forum. He can be reached at (651) 290-0707 or swente@forumcomm.com