Republican Sen. Norm Coleman's chances of prevailing in Minnesota's disputed U.S. Senate contest may be slim, but they're not none.
And if Tuesday's court-ordered recount of 400 absentee ballots fails to erase Democrat Al Franken's current 225-vote lead, Coleman has pledged to take the battle to the state Supreme Court.
The political world is already looking beyond that, bickering over how far Coleman should go if he loses the recount — and if the state's high court subsequently rules that Franken should be certified as the 59th member of the Democrats' U.S. Senate caucus.
Beltway bluster aside, legal experts say that if Coleman decides to make a federal case out of a razor-thin loss to Franken — as national Republican leaders are urging — his odds at getting a new hearing appear long. Even with his lawyers invoking the Bush v. Gore U.S. Supreme Court decision of 2000.
"This is like chess," says Edward Foley, a professor and election law expert at Ohio State University's Moritz College of Law.
"There are 1,000 permutations, but if you weigh all the probabilities," he says, "this is between the Minnesota Supreme Court and the U.S. Senate."
A Coleman appeal directly to the U.S. Supreme Court would be "a Hail Mary," says Richard Hasen, a professor at Loyola Law School in Los Angeles and author of the Election Law Blog.
Convincing a federal court judge to overturn state decisions — particularly if Minnesota judges continue their pattern of unanimity on this case — would prove "a very tough legal road," he says.
So, How Could This Play Out?
Legal experts — and the candidates' attorneys — are not just waiting for the results of Tuesday's recount, which was ordered last week by a three-judge panel.
They also want to see a final decision from those same trial court judges on Coleman's claim that the state's absentee ballot counting process, which differed county-to-county, violated his constitutional right to equal protection — even though he, Franken and their lawyers agreed to standards used in the recount.
It's that equal protection argument that echoes the claim George W. Bush took to the U.S. Supreme Court in his successful effort in 2000 to win the disputed state of Florida and the presidency.
But as a precedent, the high court decision in Bush v. Gore is essentially a legal tabula rasa. It has never been tested by the Supreme Court, though it has been cited in lower-court cases.
"Nobody really knows what Bush v. Gore means as a precedent," Foley says. "There's been no case at the U.S. Supreme Court that has directly implicated the precedent and called on the justices to explain it."
The nation's high court is also unlikely to accept Coleman's request for a rare expedited ruling, experts say, for at least two reasons.
For starters, the particular election issue at stake isn't "ripe," meaning that there isn't a body of conflicting lower-court decisions on similar disputes. And justices would likely be far more hesitant to insert themselves in a U.S. Senate race than in an unresolved presidential contest that could potentially have left the nation without a duly elected leader on Inauguration Day.
However, no matter how remote his chances for success, a Coleman request for high court review could serve to delay for months the seating of a second Minnesota senator, Hasen says.
Unless it's an emergency, the court does not consider petitions during its summer break, from the end of June to the beginning of October. GOP Senate leaders have threatened to block any attempt to seat Franken if he's declared the winner by state courts, pending any ongoing appeal by Coleman.
That would mean that the Coleman-Franken race would just add to its existing record as the longest undecided statewide race in Minnesota history.
"People can differ at what point finality is finality," Foley says. "But somebody has to lose this election."
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