The Franken campaign’s latest legal filing has made official something that was widely expected to come in some form or another — they are asking the election court to order the Coleman campaign to pay the costs for the contest, including a not-yet-specified amount of Franken’s own legal fees.
So what exactly does this mean? Just how much would the Coleman camp be on the hook for, if the judges agreed?
The Star Tribune asked lead Franken lawyer Marc Elias if the campaign is asking just for fees related to the Pamela Howell dust-up, or the campaign’s other legal expenses, too. “We’re going to leave it to the court to decide that,” said Elias. So for now, this appears to be up in the air.
The Franken filing asks: “costs of the contest must be paid by Contestants, and Contestee shall prove up his costs by affidavit.” The issue here is that the election-contest statute has a loser-pays provision — but it doesn’t clearly state just how conservative or expansive the definition should be.
“I think it’s unlikely that the court is really gonna stick it to Coleman,” Professor Larry Jacobs, of the University of Minnesota, told TPM. “Because this is not a frivolous case. It’s really encouraged in state law.”
On the other hand, Professor David Schultz of Hamline University thinks the loser-pays provision is there to provide a serious disincentive to launching a contest, and could potentially be construed broadly. Taking a look at the types of cost involved, some or all could be granted while others might not.
The first category would be the costs for just the court itself. The plain language of the statute makes this one a seemingly certain call, and Schultz thinks it might be in the range of $150,000-$200,000. Next up are the outstanding costs to the state and local officials, which Schultz thought could be $100,000-$200,000 — but which might just be a lowball estimate.
Deputy Secretary of State Jim Gelbmann told TPM that if we’re counting all government costs, including the data requests that were already charged to the campaigns and paid for, Schultz’s figure would be just a fraction of that. This does all depend on just how we count things, but the Franken campaign could potentially seek reimbursement from Coleman on their own share of already-paid government costs.
This would leave us with the costs from the local governments that didn’t seek immediate payment, plus the costs for state and local officials who had to organize paperwork and travel to the courtroom to testify. For example, Gelbmann himself testified for two-and-a-half days.
The third category is Franken’s own legal fees, which are not publicly available but Schultz thinks could be anywhere from $1-$3 million. Schultz told TPM that he researched election contests from other states, with a similar loser-pays provision as Minnesota’s. And in those states, the attorney’s fees are included in practice. Schultz sees this as a 50-50 proposition or better so we’ll see how it works out — the reality is that this case is both legal and political, and anything can happen.
