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GOP leaders hoping for repeat of Bush v. Gore in Coleman case
Rachel Oswald
Published: Tuesday March 17, 2009

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Anticipating a loss in Minnesota state court, the GOP is pinning its hopes to a federal court ruling in favor of Sen. Norm Coleman's challenge of Al Franken's narrow vote lead by making the same case they did in 2000 with Bush vs. Gore.

Though a ruling is expected any day in the case and many signs point to a victory for Franken, who leads the recount with 225 votes, Senate Republicans are "encouraging Coleman to be as litigious as possible and take his fight all the way to the U.S. Supreme Court if he loses this round, believing that an elongated court fight is worth it if they can continue to deny Democrats the 59th Senate seat that Franken would represent," reported The Politico on Tuesday.

Republicans are hoping that their Supreme Court success in the 2000 Florida recount could be replicated in federal court by arguing that the different methods used for counting absentee ballots in Minnesota counties are in violation of the Constitution's equal protection clause.

“The Supreme Court in 2000 said in Bush v. Gore that there is an equal protection element of making sure there is a uniform standard by which votes are counted or not counted, and I think that’s a very serious concern in this instance,” said Sen. John Cornyn (R-TX), chairman of the National Republican Senatorial Committee to Politico. “I’m not making any predictions, but I wouldn’t be surprised” if it ended up in federal court."

The Franken camp on the other hand remains confident of victory.

"After seven weeks of trial, hundreds of witnesses, and thousands of exhibits, the trial demonstrated what the state canvassing board found to be true after an exhaustive recount: that Al Franken got more votes on Election Day than Norm Coleman,” said Franken lawyer Marc Elias in a statement reported by The Hill on Monday.

Other top Republicans have also taken up the call for a federal court battle including Senate Minority Leader Mitch McConnell (R-KY), Sen. Lindsay Graham (R-SC) and Jeff Sessions (R-AL).

“The state court is not the final word on that, because the question in federal court is whether the guarantee of equal protection under laws in the U.S. Constitution has been violated by an inconsistent policy with regard to counting ballots,” said Sessions to Politico.

Even if Franken is eventually seated, the tactic of dragging out the case through federal court over a period of months could delay Senate Democrats a crucial vote needed in favor of their card-check legislation, something Republicans are all to well aware of.

On the other hand, a costly legal battle will deprive Republicans of much needed campaign funds for 2010 when they are already feeling the affects of a down economy on their campaign coffers and the realities of their minority party status with its inherent fundraising lag from key lobbyist constituencies such as defense and finance.

Coleman campaign spokesman Tom Erickson told Politico that Coleman had raised nearly $25 million for the 2008 election.

Though the Supreme Court never intended their 2000 ruling in Bush v. Gore to become a legal precedent, The New York Times in December reported that the ruling has already been cited in multiple other election cases.

“Our consideration is limited to the present circumstances,” the majority ruling in the case said, “for the problem of equal protection in election processes generally presents many complexities.”

“You’re starting to see courts invoke [Bush v. Gore] and you're starting to see briefs cite it,” said Samuel Issacharoff, a law professor at New York University to The Times. “Bush v. Gore introduced an important idea. It is that the political process has rules, the rules have to be fairly applied and that those rules need to be known up front.”

Bush v. Gore was at the center of a unanimous decision in November by the U.S. Court of Appeals for the Sixth Circuit that allowed a comprehensive challenge to Ohio voting systems to move forward, reported The Times. In their ruling, the judges acknowledged the Supreme Court’s admonition about the limited precedential value of Bush v. Gore but said “we find it relevant here.”

Correction: This story has been updated to include a retraction by Politico on the amount of money the Coleman campaign has raised. An earlier draft of this article attributed the $25 million figure to money raised since November.

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