Talk about timing. After eight months of electoral dispute, former comedian Al Franken may be sworn in as Minnesota’s second senator and take his seat on the Senate Judiciary Committee as early as this week — just in time for the confirmation hearings on U.S. Supreme Court nominee Sonia Sotomayor. The Minnesota Supreme Court’s 5-0 ruling on June 30 that certified Franken as the winner over his Republican opponent, Norm Coleman, was great news for Senate Democrats but also for Washington lawyer Marc Elias, who argued for Franken in front of the state supreme court.
Reporter Jeff Jeffrey of The National Law Journal caught up with Elias, a partner at Seattle-based Perkins Coie who specializes in political and election law, the day after the opinion was handed down and discussed his strategy, the eight-month wait and his feelings on being part of the “largest recount” in U.S. history. The transcript has been edited for space and clarity.
NLJ: How did you find out about the ruling?
Elias: I got a call from David Lillehaug of Fredrikson & Byron in Minnesota, who represented Al Franken as well, who told me that he had heard the opinion was coming down in the next 10 minutes. I immediately got to a computer and pulled the opinion up.
NLJ: And you were thinking what?
Elias: We were just pleased, thrilled actually, that the state supreme court had agreed with all of the legal arguments we made before it and the trial court. Mr. Coleman had a right to contest the results of the election, and we never begrudged him that right, but in the meantime the state of Minnesota did not have full representation in the Senate.
NLJ: Al Franken is known as a guy who will offer his opinion pretty freely, but throughout the litigation he rarely spoke out. Was it part of your strategy to have him keep a low profile?
Elias: Well, Al Franken is not a lawyer, and he hired a lot of lawyers to represent him in this case. He did speak out at certain important junctures, but by and large what went on was not a political proceeding. It was a legal proceeding, so we thought it best to let that take place with the lawyers in court.
NLJ: Talk to me about your legal strategy. How did you approach the case?
Elias: Beginning with the recount, there was an enormous team of lawyers involved. We had hundreds of volunteer lawyers who were present at recount centers and a dozen or so who were overseeing the recount effort. During the trial there were three lawyers in court every day, and then we had about as many lawyers helping out with research, brief writing and document review.
NLJ: So there were a lot of boots on the ground. How did that help?
Elias: The real strength of our team was that we had the same core group of lawyers who handled the recount effort and went all the way up to the [state] supreme court. It helped keep things cohesive.
NLJ: What was the hardest part of handling a case as high-profile as this?
Elias: The most direct impact it had was my having to be in Minnesota for four months. I had a lot of very patient and very understanding clients who were willing to work with me for those four months.
NLJ: But waiting for the result must have been brutal.
Elias: The last three weeks were particularly stressful because you never knew when you went into a meeting whether the court was going to hand out its decision. It’s a huge relief not to have to watch and wait for every smoke signal to come out of the [state] supreme court.
NLJ: Had you ever been part of something like this before?
Elias: I’ve handled recounts before, but the truth is that they’re a very small part of my practice. This one was unique because it was the largest recount in American history. The ones I’ve handled in the past usually lasted only a few days or weeks. Even Bush v. Gore didn’t last this long. I’m glad that it came out in favor of my client, and I’m glad it’s through.
Jeff Jeffrey can be contacted at jeff.jeffrey@-incisivemedia.com.