MEDIATION AND POST-ELECTION LITIGATION VI. CASE STUDY: THE 2008 FRANKEN-COLEMAN RECOUNT There is perhaps no better recent example than the Franken-Coleman recount of 2008 to demonstrate the possibilities of mediation in post-election process disputes. First, the Franken-Coleman recount was religiously documented by the Minnesota Secretary of State's office, Ill the judiciary, 112 and the state and national press, providing a bird's eye view into the process.ll3 Second, the process was protracted, lasting eight months from start to finish and featuring multiple "mini-disputes" over the course of the recount and subsequent contest proceedings.l14 The scale of the recount offers opportunities to examine which kinds of post-election disputes might be suited to ADR and which are not. Finally, many of the major players in the race are serendipitously friends of my home institution, William & Mary Law Schoot.l 15 With this in mind, the discussion below examines the Franken-Coleman recount with an eye towards whether mediation might have usefully been injected. Importantly, the 2008 Minnesota recount was in many ways sui generis, replete with local oddities and peculiar circumstances that would not likely surface in other post-election disputes. With this in mind, the discussion below examines the Franken-Coleman recount with an Ill See 2008 U.S. Senate Race: Recount Information, OFFICE OF TilE MINN. SEC. OF STATE, http://www.sos.state.mn.us/index.aspx?page=1405 (last visited Sept. 21, 2011). 112 See Minnesota Senate Seat '08 Election, MINNESOTA JUDICIAL BRANCH, http://www .mncourts.gov/?page=3409 (last visited Sept. 21, 2011 ). 113 Weiner, supra note 62, at 169-70. 114 The initial count ended November 18. The close margin resulted in an automatic, mandatory hand recount. The State Canvassing Board then certified the recount results on January 5 at which point the Coleman campaign filed an election contest. On April 13, a three-judge panel resolved the contest in favor of Franken; the verdict was affmned by the Minnesota Supreme Court in June 2009. See STEVEN F. HUEFNER, NATHAN A. CEMENSKA, DANIEL P. TOKAJI & EDWARD B. FOLEY, ELECTION LAW@ MORITZ, FROM REGISTRATION TO RECOUNTS REVISITED 15-16 (20 11 ), available at http://moritzlaw .osu.edu/electionlaw/proj ects/registration-to-recounts/20 11 edition. pdf. For the purposes of this discussion, recount and contest will be used interchangeably. 115 Marc Elias taught a course on Post-Election Litigation in Fall 2011 for William & Mary Law; Ben Ginsberg serves on William & Mary's Election Law Program Advisory Board and has spoken several times at the law school; Secretary of State Mark Ritchie recently traveled to Williamsburg to participate in the 20 II Election Law Symposium on the role of secretaries of state in elections; and the Hon. Justice Paul Anderson of the Minnesota Supreme Court and this author are members of the planning committee for the William & Mary Law School Privacy and Public Access to Court Records Conference, which takes place every eighteen months in Williamsburg, VA (see http://www.legaltechcenter.net/aspx/conferences.8th-conference-on-privacy-publicaccess-to-court-records/). 353 HeinOnline -- 27 Ohio St. J. on Disp. Resol. 353 2012