So How Screwed Is Norm Coleman?

He was screwed from the beginning, says Rick Hasen:

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.

Hasen later cites a whole bunch of other folks who think that Franken’s going to win going away.

The irony is of course that Team Coleman wants to overturn Andersen v. Rolvaag, the Minnesota case law on recounts, by using Bush v. Gore, when Andersen v. Rolvaag is not only settled case law all the way up to the US Supreme Court, but is actually the lead precedent cited in Bush v. Gore!