Democrat Franken’s victory over the incumbent Republican senator, Norm Coleman, left Elias, who headed his legal team, with an unblemished record in postelection fights. This one just took longer than most, admits Elias, a Washington, D.C.- based election-law specialist at Perkins Coie who serves as counsel to the Democratic Senatorial Campaign Committee (DSCC).
“The recounts and contests I had been involved with typically resolved themselves fairly quickly, and even where they went on for a while they didn’t have the same level of intensity that this one did,” says Elias, whose network of clients includes all but a handful of Democratic senators. “We wound up going to the state Supreme Court on at least four occasions.We had a trial that lasted seven weeks. The state hand recounted 2.9 million ballots.
“Minnesota has a lot of processes in place for their close elections,” he adds. “But going in it never occurred to me that it would go on as long as it did or take as much time and energy as it did.”
The recount begins
Elias had advised Franken throughout the campaign on election-related issues such as campaign finance and political broadcasting regulations. The two had met — and clicked — during a DSCC training session for candidates.
“Marc is the lead attorney for Democrats in the country,” Franken says. “He was explaining all the legal issues that candidates face, and I was extremely impressed by him. Also, he had a great sense of humor. Afterwards I told him he was funny. After that, I had him for life.”
Having already helped the campaign plan for a recount before votes were cast Nov. 4, Elias transitioned into the role of lead attorney to monitor the recount triggered after Coleman initially emerged with a razor-thin victory of 215 votes over Franken; Minnesota law mandates a hand recount of ballots where the victor’s margin is less than one-half of 1 percent.
Each side was permitted to challenge ballots they thought were called wrong by county during the hand recount that was conducted in more than 100 locations throughout the state over a two-month period. Approximately 5,000 challenged ballots were reviewed publicly by five people: the chief and associate justices of the state Supreme Court, the secretary of state, the chief judge in the county seat, and another judge from that county.
As the recount progressed, Elias says he became increasingly confident that his client would win. On Jan. 5, 2009, the Minnesota State Canvassing Board declared Franken victorious by 225 votes.
Coleman filed a notice of contest in Ramsey County District Court the next day. “I was somewhat frustrated because it was clear that Al Franken had won the election and there wasn’t anything that was going to change about that in the course of a court contest,” says Elias, who had to miss vacations with his wife, Brenley ’93, and their two children and the inauguration of President Barack Obama. “The frustration wasn’t really at the law [but] at the circumstances.”
A co-chair of the bipartisan Committee to Modernize Voter Registration, Elias is quick to say that he respects Minnesota’s commitment to fair elections.
“Minnesota allows everything there is to allow for a post-election dispute,” he says. “You get a recount, you get a hand recount, you get a hearing on challenged ballots, and then you get a de novo review as part of a court contest. It’s a much more detailed and longer process and in that sense a fairer process because you get so many opportunities to make your case and to bring forth your arguments.” In that context, his focus shifted to “making sure that all of the lawyers were doing the things that they needed to do to help make sure that Al Franken’s victory was preserved.”
”I think we are done"
Throughout the post-election dispute, Coleman’s legal team — which included Bush v. Gore counsel Ben Ginsberg — argued that varying treatment of absentee ballots violated voter rights to equal protection under the Constitution.
“During the course of the contest I got used to that being an argument that Sen. Coleman’s legal team put forward, but it never seemed to me a very strong one and thankfully the courts agreed with us,” Elias says. “At no point in the process did they ever attract even a single vote for that proposition.
“But there was a lot of opportunity for whatever arguments or concerns either side had to be fully aired and litigated,” says Elias of the post-election marathon. “In that kind of setting, where you have good lawyers on both sides — Norm Coleman had some of the best lawyers there are — eventually the will of the electorate’s going to come out.”
Elias spoke with Franken on a daily basis and met with him in person once or twice per week throughout the challenge. He calls the senator “a model client.” “He understood from the beginning that these processes were legal processes,” Elias says. “He’s very smart and picks up on stuff incredibly quickly, but he understood that a lot of this is highly technical and he relied on the lawyers to give him the advice and to make the judgments that we were being paid to make.”
Franken was likewise impressed with Elias. “Marc has an incredibly energetic and incisive mind, a great ability to communicate with me, and a fierce competitive approach,” says Franken. “His instincts and advice were right on.”
Facing intense public and media interest in the contest, Elias’s routine included at least one press conference per day. He and his team avoided criticizing the court and opposing counsel in any way. “As a lawyer, you have to be prepared to provide, in an appropriate fashion, information to the public so that they understand what’s going on, where you are in the process, and what people might expect,” he says.
“You also have to balance that you are in a legal setting — you are appearing before judges. You have obligations to the court that temper some of what you can say to the press and how it’s said.”
On March 31, a three-judge panel ordered that an additional 400 ballots be counted in the race. That process, carried out in open court, increased Franken’s lead to 312 votes. At that point, Elias told the Minnesota Independent, “I think we are done.”
Instead, Coleman’s legal team appealed the count to the Minnesota Supreme Court. The court’s 5–0 decision on June 30 favored Franken, and he was sworn in as a senator a week later.
Elias foresees long, contested election recounts becoming ever more prevalent, but thinks cases like Franken’s will leave candidates better prepared to handle them. For his part, Franken says candidates would do well to hire Elias in similar situations, but offers this suggestion: “Start fundraising immediately.”