MN Supreme Court on recount: “This is not Florida”


Roger Magnuson wasted no time in bringing up Florida. In fact, the attorney’s first utterance before the Minnesota Supreme Court this afternoon referenced the legal debacle of 2000. Representing Sen. Norm Coleman’s campaign, Magnuson argued that the state canvassing board’s actions of December 12, when it recommended that all 87 counties count wrongly rejected absentee ballots, were an “an invitation to go to Florida.”

But before Magnuson could begin to back up this assertion, he was interrupted by a clearly irritated Justice Paul Anderson. “This is not Florida,” he stated. “I’m just not terribly receptive to you telling us this is Florida.”

So it went throughout the one-hour hearing before the Supreme Court today, with the justices repeatedly interrupting and questioning attorneys for both campaigns. The justices seemed more interested in Andersen v. Rolvaag, the 1962 Minnesota Supreme Court case that helped decide the state’s deadlocked gubernatorial race, than Bush v. Gore.

At stake is whether improperly rejected absentee ballots (thought to number roughly 1,500) will ultimately be included in the U.S. Senate recount. The Coleman campaign filed the lawsuit and is seeking a temporary restraining order to stop local election officials from counting such ballots.

Only five justices were present for the arguments, rather than the standard seven. Chief Justice Eric Magnson and Justice G. Barry Anderson have recused themselves from the proceedings because they are members of the canvassing board and therefore parties to the case.

Under Minnesota law there are just four reasons for which an absentee ballot may be properly rejected. But Magnuson argued that it’s an “illusion” that these guidelines provide a clear road map for local election officials in dealing with such ballots. “The devil is in the details,” he noted.

Justice Helen Meyer expressed befuddlement at the Coleman campaign’s objection to the canvassing board’s actions. “What did the canvassing board do that’s objectionable?” she asked, noting that they merely recommended that local election officials sort rejected absentee ballots into five piles. “As I understand that’s the complete sum of what they’ve asked them to do.”

Magnuson was followed to the dais by William Pentelovitch, representing the Franken campaign. He argued, conversely, that the canvassing board, local election officials and the Secretary of State’s office had all acted properly in seeking to count all properly cast ballots. The Democratic attorney received equally brusque treatment from the five jurists.

Justice Paul Anderson wondered if they were facing a deadline for adjudicating the matter. “Is there a date beyond which this court cannot act?” he asked. Pentelovitch’s response: “I don’t think so.”

In other words, it may be awhile before the case is settled — and even longer before the official winner of the senate race is determined. The justices gave no indication of when they may issue a ruling. “Thank you all,” Justice Alan Page said at the close of the proceeding. “A decision will be forthcoming.”

Afterwards Magnuson, who was one of the attorneys on the Republican side in Bush v. Gore, expressed optimism that the Coleman campaign will prevail. “I think they’re very concerned about the issues we raised,” he said of the Supreme Court justices, “and we’re very hopeful that they’ll come up with a solution that doesn’t walk us into the slew of Florida.”