“We’ll do everything we can to support Norm as long as he has appellate remedies to pursue,” Cornyn said. “I’m not suggesting Norm has this plan in mind, because frankly I think he’s hopeful it turns out well at the state Supreme Court. But as a former state Supreme Court judge and as a recovering lawyer for 30 years now, I would tell that if he were to lose, what happens is that the secretary of state and the governor are required to sign a certificate of election. Just as a procedural matter, if — and this is a big if — Norm were to decide to appeal this matter to the United States Supreme Court under the Bush v. Gore (2000) precedent, which says that under the Equal Protection Clause uniform counting standards are a Constitutional matter, that they could appeal to the United States Supreme Court. The justice that’s responsible for that area — I think it’s Justice Alito — could issue a stay in the issuance of the election certificate, and it could be referred to the entire court.”

Cornyn wasn’t sure that this would happen. “I say all this as ‘could,’” he said, “not as ‘will or should.’ It depends on what the Minnesota Supreme Court does. But at the oral arguments, Franken’s lawyers did argue about the applicability of the Bush v. Gore standard. It makes no sense, and it doesn’t meet the Supreme Court’s constitutional precedent, to say that one local election official can decide by one standard which ballots should be counted and that some official somewhere else could decide by a different standard.”

Cornyn also argued that there was a larger issue at play than whether the Democrats got a 60th Senate seat. “I’m very proud of Norm Coleman for fighting the good fight to protect the right of Minnesota voters to make sure all legitimate votes are counted,” said Cornyn. “That is the real question here. I realize it’s manifested itself in terms of who actually wins this seat, but I think that should be the focus.”

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