By Don Davis
St. Paul Capitol Bureau
ST. PAUL - The Minnesota Supreme Court says Al Franken won the U.S. Senate race and should be sworn in as the state's second senator.
In an early-afternoon ruling today, five members of the high court agreed with a district court decision that Democrat Franken received more votes than Republican Norm Coleman. Justices repeatedly wrote that Coleman failed to prove his case.
The ruling came after Coleman appealed a lower court ruling from earlier this spring that also gave Franken the win.
"We affirm the decision of the trial court that Al Franken received the highest number of votes legally cast and is entitled ... to receive the certificate of election as United States senator from the state of Minnesota," the justices wrote.
Coleman, who appealed a lower court ruling against him, contended that absentee ballots accepted on election day and in a recount that followed did not meet the standards the lower court established and there were differences in how different counties decided what ballots should be counted.
However, the justices said state law is clear that decisions about what ballots should be counted need to be made before they are deposited in ballot boxes, not afterwards. That bars Coleman from challenging the ballots, the court ruled.
The Coleman case centered on the allegation that ballots were handled differently from county to county. However, the justices wrote, the law is "not violated every time public officials apply ... state laws differently."
Two justices did not take part in the decision because they were involved in the race's recount.
Now that the Supreme Court has spoken, attention turns to Gov. Tim Pawlenty as political observers wonder if he will sign a certificate declaring Franken the winner. While the court did not specifically order him to sign an election certificate giving Franken the election, it said he is "entitled" to the document.
In recent days, Pawlenty has said he would sign the certificate if ordered to do so. His office did not immediately answer a question about whether he would sign it.
Both candidates planned to meet with reporters later in the day, but others issued immediate reactions.
"Now that the Minnesota Supreme Court has made its final ruling, it is time to recognize Al Franken as the duly elected senator from Minnesota," said Anna Burger, who heads the pro-Franken Change to Win organization. "As is appropriate after any extremely close election, Minnesotans took the time to conduct an extensive and thorough recount process, but now that all reasonable legal options have been exhausted, Minnesota deserves its full representation in Congress. We call on Gov. Pawlenty to pursue the state's best interests and end this contest instead of favoring those who would allow the recount to continue for purely partisan reasons."
Added U.S. Sen. Robert Menendez, chairman of the Democratic Senatorial Campaign Committee: "As we've seen over the past 238 days, no matter how many times Norm Coleman goes to court, the result of the election never changes: Al Franken earned more votes than Norm Coleman. Al Franken was elected to the Senate and he ought to be able to get to work for the people of Minnesota."
Menendez urged Pawlenty to sign a Franken election certificate. While the election certificate is important, more important is what senators decide. They have final say in who is seated in their body.
The court case is important nationally because if Franken becomes senator, that would give Democrats and their allies 60 votes in the Senate. That is enough to stifle Republican opposition, giving Democrats an easier time passing their bills.
The Senate legal contest centered on whether some absentee ballots were not counted, but should have been.
The high court essentially was looking at whether thousands of ballots from outside Minnesota's largest cities were improperly rejected.
Coleman's attorneys told the justices on June 1 that laws were not evenly applied, and actions in larger counties such as St. Louis, Ramsey and Hennepin tilted last Nov. 4's U.S. Senate election in Franken's favor.
Democratic-heavy counties "are the counties that relaxed the standards and let the votes in," Coleman attorney Joe Friedberg said. Since those votes cannot be uncounted, Coleman's team wanted more rejected absentee ballots counted in hopes of erasing Franken's 312-vote lead.
Coleman had hoped that the five Supreme Court justices who heard the case would send it back to the three-judge district court panel to consider counting more ballots, using the more liberal populated counties' method of decided what absentee ballots were properly cast.
Franken attorney Marc Elias, a nationally prominent Democratic elections law lawyer, said it is only natural that elections officials across the state handled things in different ways. There is no problem with that, he said.
The high court was looking at a case resulting in the longest-ever time Minnesota has gone without one of its two U.S. senators. The Nov. 4 election was so close that a statewide recount of 2.9 million ballots was needed.
Coleman decided the state Canvassing Board did not properly include enough absentee ballots in its recount and he announced Jan. 6 that he would challenge the election in court.
That was a day after the Canvassing Board certified election results from 2.9 million voters, giving Franken 225 more votes than Coleman.
"This is not just about me," Coleman said of his election contest. "The eyes of the nation are on the state that we love and we need to show them that Minnesota has done everything we can to make sure that we protect every voter's right."
Some votes were counted twice while other lawfully cast ballots went uncounted, Coleman alleged.
The campaigns' positioning on absentee ballots in the election contest was a reversal of sorts. Coleman's campaign asked that all 12,000 rejected absentee ballots be considered in the trial and Franken opposed it. Early in the recount, Franken argued that some absentee ballots were rejected improperly and should be included. Coleman's campaign fought against that.
In the trial where Coleman challenged the recount, Franken's lead rose to 312.
That trial was conducted by three district court judges from around the state. The panel began hearing Coleman's challenge on Jan. 26 and released its ruling against the former senator on April 13.
Coleman's Senate term ended in early January.