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Brief State Supreme Court Update.

Today oral arguments were finally heard in the State Supreme Court, moving us one step closer to having two full, real-life, United States Senators! For those of you who weren’t watching the coverage over at the uptake, Rick Hasen, Electoral Law Professor at Loyola Law School was live blogging. He thinks that it is going to be tough sledding for Norm Coleman. A couple of points from his post:

4. The reason Coleman is having a harder time is that he’s got a tougher road to success:
a. The state Supreme Court is going to deter to the factual findings of the trial court, and those factual findings favor Franken.
b. The state Supreme Court’s existing precedent in terms of treating absentee ballots strictly as a matter of fraud-prevention favors Franken. A change in that standard now, as I’ve argued, would create a due process argument for Franken by constituting a change in the rules of the election after the fact.
c. Even if the court accepted some of Coleman’s arguments in the abstract—such as that there were some votes illegally counted by some jurisdictions (or alternatively, some ballots accepted under a looser "substantial compliance" standard)– that doesn’t mean Coleman would win his case. He’d have to show that there were enough problems to make a difference in the outcome of the election (a point the Justices expressed a great deal of skepticism about, in their discussion of the failure of the offer of proof).
d. On the merits, the Justices mentioned ways of distinguishing other cases in which there were due process problems, such as when voters relied upon rules of the game that were changed later. There was an interesting discussion of whether Bush v. Gore eliminated the requirement that a challenger prove intentional discrimination to make out an equal protection argument. It was the only line of argument that I saw potentially helping Coleman, but it did not appear to be enough to overcome the Justice’s skepticism.

Things aren’t looking good for Norm once again. Head over to and add your name to the petition to seat our 2nd senator. For more information on the recount, check out the Star Tribune’s recap, as well as the video recap from the uptake. We’ll have more information regarding the court case as it comes along.

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