— Brad Friedman, The BRAD BLOG
The state canvassing board in Minnesota has now certified Al Franken (D) as the winner over incumbent Sen. Norm Coleman (R) in the race for the U.S. Senate. Barring a successful legal challenge, which has now been filed by Coleman, Franken will have won the seat by an astoundingly close 225 votes, out of some 2.9 million cast.
But there’s still a chance, albeit a slim one, for Coleman to reverse his fate. A very good provision in MN’s law — not found in most other states — may delay Franken’s seating, meaning he will not be sworn in with rest of Congress at the beginning of the new session slated to start tomorrow. Ultimately, however, the provisions should ensure that whoever is eventually sworn in to serve as the state’s Senator will not be forced to serve under a cloud.
The voters of MN deserve that much, no matter how long it takes, and thankfully, like its hand-count laws, the state’s provision requiring the completion of legal challenges before final certification is sent to Congress by the Sec. of State, is a model for the nation.
Would that all of the other states in the union had such a provision…
Readers of The BRAD BLOG may well remember the brouhaha following the special election, in the Summer of 2006, to fill the U.S. House seat vacated by Randy “Duke” Cunningham (R) after he was convicted on bribery charges. The election between Brian Bilbray (R) and Francine Busby (D) in San Diego’s 50th Congressional district — seen at the time as a bellwether for the impending fall elections — was an embarrassment, as both federal and state law was violated in the race by the use of electronic voting systems which, due to San Diego’s election procedures, were effectively decertified for use.
With thousands of votes left still-uncounted by the electronic Diebold optical-scan voting systems (used in violation of the law after they were sent home on unsecured “sleepovers” with poll workers for days prior to the election), Susan Lapsley, then Asst. Sec. of State under Republican SoS Bruce McPherson, faxed a hasty certification to the then Republican-controlled U.S. House of Representatives declaring Bilbray the winner of the race.
The Republican operative Lapsley’s certification was sent despite legal challenges being mounted to contest the results of the election. Then, following a letter [PDF] sent to the judge presiding over election contest by the attorney for the Republican chair of the U.S. House Administration Committee, claiming the U.S. Constitution gave sole authority to Congress, and Congress alone, whether or not to seat Bilbray, the case was dismissed on jurisdictional grounds. Neither the voters, nor the courts of California, it was decided, would be allowed to determine who actually won the seat under state law.
It was outrageous, but in apparent accordance with both state law and the U.S. Constitution…at least according to the House Republicans who rushed to swear Bilbray in as soon as possible, and the state courts who, as is often the case, look for any reason to stay out of election-related matters.
The Republican Bilbray “won” the seat, essentially because CA’s Republican Sec. of State (illegally) rushed certification to the Republican-controlled U.S. House who claimed complete Constitutional jurisdiction to seat the member of their choice (who just happened to be the Republican).
Thankfully, and with great respect to the voters of MN, the state’s law requiring the completion of legal challenges before final certification is sent to Congress, should help stave off such an outrage by avoiding the ability of a Democratic U.S. Senate candidate to be certified by a Democratic SoS (the state’s Mark Ritchie), only to be seated by a Democratically-controlled U.S. Senate claiming absolute Constitutional authority over the seating of the candidate of their wishes.
The Republican candidate, and the voters of the state, deserve to see the completion of all all possible challenges to the result of the election before they are robbed of their jurisdictional rights over who represents them in Congress. It’s a pity the same courtesy was not given to the voters of San Diego in the CA50 race, but at least — barring any surprises — that same outrage should not happen in MN.
If that means a further delay before MN has its new Senator sworn in, so be it. At least once they get their Senator, every voter in the state should know that every reasonable doubt concerning the election of that Senator has been resolved legally by the voters and courts of the state itself, accurately and transparently.
Would that every voter in the U.S. was afforded the same courtesy in every race for the U.S. Congress.
By the way, as irony would have it, MN’s likely next Senator, Al Franken, was a radio host on Air America at the time of the Busby/Bilbray brouhaha in California. And though Franken actually came to San Diego, to broadcast at DFA’s DemocracyFest that year, which happened to take place at the height of the scandal, he refused to discuss the issue substantively and even refused to have this reporter on air to discuss it, even though we happened to be in San Diego at the time, and had been the one to break the story originally. The result: when the matter did come up during a live broadcast featuring a guest who was a so-called reporter from the Rightwing Union-Tribute, Franken was booed by the live studio audience, on live radio, for dismissing the matter out of hand.
Coleman’s Last Chance and Some Free Advice…
Coleman will now have seven days, under Minnesota law, to file an election contest, now that the certification has been finalized by the state board. While his attorneys have already signaled their intent to file such a contest, and challenge the counting of a number of improperly rejected absentee ballots, as well as several ballots that they contend may have been counted twice (there is no such evidence that we’re aware of to back up their claim on that score), there are two other points the Coleman team may wish to bring to court with them. This free advise is given, even though the Coleman camp ran an outrageous and offensive (if ultimately unsuccessful) FL 2000-style post-election campaign to try and keep thousands of legitimate votes from being counted at all.
We’ve pointed out both of these issues in more detail previously, but they are worth noting again since they’ve a) apparently been ignored so far by both Coleman and Franken and b) could have a significant impact on all future elections across the entire country.
1) Coleman’s team should demand that all memory cards and hard drives from the flawed electronic voting systems used in MN be securely retained for a full 22 months under the federal law that requires the retention of all such election materials. Memory cards and hard drives from such systems are routinely erased or deleted after results have been finalized, but they should not be. If there are any questions for the next 22 months about the way the systems tallied votes, those elements of the system should be available to forensic investigators. That they are not, is a gross oversight by election officials. A court finding that such equipment should be kept security, as per federal law, following all elections would be a gift to the nation.
2) MN, and their Sec. of State Mark Ritchie, deserves much applause for fully transparent way in which their post-election hand-counts are carried out. The state’s provisions for same are among the very best in the nation. That said, the fact that reconciliation of unvoted ballots are not generally a part of any jurisdiction’s recount laws is a tremendous oversight in such procedures. One of the likeliest ways to game a paper-ballot election is with the use of unvoted ballots, either using them to stuff the ballot box, or otherwise replacing legitimately voted ballots.
We’ve previously called on both the Coleman and Franken campaigns (along with any other party involved in a post-election hand-count) to file public records requests for printer invoices of printed ballots. The number of ballots, as shown as having been printed on those orders, should be exactly equal to the number of voted, spoiled and unvoted ballots counted after the race. If they aren’t, that may well signify a problem. Unfortunately, most post-election counts don’t even bother to account for unvoted ballots, much less count them to make sure they are all there. Coleman’s campaign, as any other challenging an election, would be well-advised to take the appropriate steps to assure proper reconciliation of all ballots printed for use in the race.
CORRECTION: We originally named Francine Busby’s Republican opponent in the CA50 House race as Vern Buchanan. In fact, her opponent was Brian Bilbray, so we’ve made the appropriate correction. Buchanan was the Republican who was sworn in as a U.S. Congressman in Florida’s 13th district after 18,000 votes disappeared on ES&S touch-screen voting machines in Sarasota, FL in the 2006 general election. The final margin of “victory” over his Democratic opponent Christine Jennings in that race was some 369 votes. The BRAD BLOG regrets the error, and will strive in the future to keep our contested elections straighter.
If the Coleman campaign is going to challenge some of the absentee ballots not included because of the Franken objections and these are to be made available in a court challenge, it would seem that the far higher number of absentee ballots that Coleman objected to should be made available for the court’s perusal. While Coleman is only interested in gaming the numbers to eek out a victory, the court should be concerned only we seeing that the individual who received the greatest number of votes is declared the winner.
I just want Al Franken to eat his words when he pooh-poohed all those folks who thought elections were fixed back in 2000 and 2004.
Wasn’t it Brian Bilbray? I believe Vern Buchanan represents Florida.
GTash – I fear he won’t. As he benefited from the excellent election laws in MN (not found elsewhere), I suspect he’ll say “See how great our election laws are?! No problems!” I hope I’m wrong.
Neal – Gracias for the correction. Gotta keep my disputed elections straight! Will fix!
That’s funny! I was just looking at pictures of Al Franken at DemocracyFest that year! The 6th Annual DemocracyFest will be July 17th-19th in Burlington, VT! http://www.DemocracyFest.net
Also I think in Mn that both the Gov and the SOS have to sign the cert in order for it to move on down to DC
Good points, Brad. It’s hard to see how Senator Schumer’s Rules Committee can trump Minnesota state law. And it’s too bad Brian Bilbray didn’t have any California state law to allow him to contest that 2006 House race.
I still have one concern. What is to prevent Republican Governor Tim Pawlenty from refusing to co-sign a certification of election results, even if Coleman loses all of his appeals? What can stop him from maliciously prolonging Franken’s limbo period? Franken can end up with a three-year term! There must be a mechanism to force the Governor’s hand once the court rules. Would the U.S. Senate then gain juridiction to decide the case? Let’s pretend the Governor isn’t interested in reelection.
See, BRAD WINS HANDS DOWN!
My daughter’s father enjoyed the pollwokers coming out to her car to help her cast her ballot. She’s legally blind now. Salt of the earth, really!
That would be his 90 year old Mom, who’s still sharp as a tack. No shit!
Whoops. I meant to say above that I regret Francine Busby was denied a chance to appeal her loss to Bilbray. D’oh!
Oh, man, Robert, I’m glad you cleared that up! I’ve been wondering all evening what the heck you meant by that….
Hi Brad,
Why wouldn’t it be better to put Franken into the seat on a “provisional” basis? I hate to see Minnesota so underrepresented in the Senate. Especially in these kind of times economically. Then in the unlikely event that Norm Coleman prevailed in court, he could take the seat. But at least no time would’ve been lost.
That would be a Minnahoota poll worker in my above post. And the Brad comment is in reference to the webblog award! Your not the only one who needed to clarify Robert. 🙂
OT! Now, if all the elected officials in our hard fought races would please take note of this:
http://www.huffingtonpost.com/neil-young/perfect-storm-for-innovat_b_155148.html
We’d be well on the way to becoming world leaders again!
Robert Lombardi asked:
For a start, he’d have to come up with a legal basis for doing so. I’m not an expert in law, much less MN law, but I can’t imagine what legal basis he’d have for doing so.
Furthermore, Pawlenty has higher hopes, and could likely run for Prez or VP in the future. Such an out-and-out partisan and delinquent failure to perform his legal duty as Gov, in signing that cert, would do him no good down the road, I suspect.
Lorna Olson asked:
I’m not sure what legal basis there would be for doing so. I heard talk, earlier, about Pawlenty appointing Coleman on an interim or provisional basis while the seat was “vacant” (during any election contest, presumably, though it was believed to be Franken who’d be contesting back during the time I heard that talk).
So, perhaps, there is some basis in MN law that allows the Gov (a Republican, in this case) to appoint a provisional Senator, or some such.
As to the Senate being able to do so on its own, I’m unaware of any Constitutional authority they’d have to do that.
So while it may be “better” for Minnesotans to have their full compliment of Senators, if there is no actual legal basis for doing so, it can’t (and shouldn’t) be done. In my opinion, anyway.
My apologies to Agent99, Ancient and everyone else for the confusion I caused. Moral of the story: proofread!
Brad, I’m glad you’re feeling better and back to work. I hope you return as guest host for Mike Malloy and Randi Rhodes’s shows.
There indeed are precedents for a provisional Senator. See http://en.wikipedia.org/wiki/United_States_Senate_election_in_Louisiana,_1996 . Mary Landrieu defeated Louisiana State Representative Woody Jenkins in a runoff election following the 1996 elections. Jenkins cried foul; the Republican U.S. Senate investigated. Landrieu was seated as Senator, pending the investigation’s outcome. It turned out Jenkins’s detective was coaching three witnesses to falsely say they participated in election fraud! In October 1997, the Rules Committee decided to let the runoff election result stand, citing onerous costs for a new election.
In 1932, segregationist John Overton defeated incumbent Edwin Broussard for the Democratic nomination for Louisiana Senator. See http://tripatlas.com/John_H._Overton . Back then, a Democratic nomination meant certain election in Louisiana. Broussard charged fraud. Overton was seated while the U.S. Senate investigated. The election result was not reversed. Overton served in the Senate until his death in 1948.
Another OT! Juxtapose this:
http://rawstory.com/news/afp/Democrats_jubilant_as_new_Congress__01062009.html
And this:
http://www.democracynow.org/2009/1/6/dennis_blair_obamas_nominee_for_director
Brad Friedman said:
Article I Section 5 of the Constitution states:
There is nothing legally wrong with Lorna Olson’s suggestion for the Senate to provisionally seat Franken. It appears that this Senate is taking its marching orders from the President-elect to reach across the aisle, etc. The Democrats want to keep the honeymoon period going by avoiding a confrontation at this stage. Eventually, however, they will need Franken’s vote. My previous message cites two instances of provisional Senators.
As for the House, we all remember car dealer Vern Buchanan was seated as Florida’s 13th Congressional District’s Representative, following the 2006 elections. Unlike Franken, he did not have to wait for an investigation of election improprieties to be concluded.
Robert Lombardi –
I’m on the roll, so haven’t had time to dig into the links you supplied (thanks for that), but by way of knee-jerk: While there may be precedent for provisional seating, it looks like in those cases the bodies in charge of certifying the elections did so before the members were seated (provisionally or otherwise) in Congress.
In the MN Senate race case, however, as noted in the article above, MN law denies the ability to send certification to Congress until contests are settled.
In my opinion, that makes sense, as we’ve seen many times (first hand) just how difficult it is to unseat a member, once they’ve been sworn in, no matter how compelling the case of the challenger to the seat (see Jennings v. Buchanan, or even Bush v. Gore, or Bilbray v. Busby, for just a few examples).
The seating of a Congress member, as we saw in Busby/Bilbray, effectively gives Constitutional jurisdiction to the Congress, such that nothing that may happen back in the states — including even the revelation of millions of fraudulent votes, or some such — gives the voters and the candidates the legal authority to determine who will be their member.
While you might like to see Franken seated provisionally now, I suspect you’d be up in arms if we happened to have a Republican controlled Senate, and they decided to seat Coleman “provisionally” just to make sure MN had full Senate representation.
And you KNOW they would do exactly that if the situation were reversed… (I’m not saying the dems therefore should.)