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ERIC BLACK INK

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    Senate recount outlook: Here are some real lollapaloozas

    By Eric Black | Published Mon, Jan 5 2009 9:26 am

    A map to the next phases in Recountland, including some new possible scenarios, featuring some real lollapaloozas that will surely never happen, a reconsideration of the chances that Al Franken will be sworn in on Tuesday, and a discussion of how much difference it makes.

    1. Franken wins, sort of. If the dam don't break and the creek don't rise, the state Canvassing Board will declare Al Franken the winner of the recount today, probably by a 225-vote margin.

    There is a very slight possibility that the Minnesota Supreme Court will intervene before that can happen (as Team Coleman has requested) and revise the last stages of the process. But I don't know anyone who thinks this is likely. (Midday update: In an order late this morning, the Supreme Court rejected Coleman's request to intervene.)  

    2. Coleman goes to court, maybe. The next big question is whether Norm Coleman will file court challenges (called "election contests.") Until Saturday, this was considered a near certainty. But the mood changed. With Saturday's counting of wrongfully rejected absentee ballots expanding Franken's lead from 47 to 225, the already slim chance that Coleman will be able to overturn the result grew dimmer.

    It's expensive to keep the lawyers this busy, and there is some talk that Coleman's image will suffer if he starts looking like a sore loser. (Some of you may think his image couldn't get any worse, but you are wrong. Ask your Republican friends.) The image question matters if Coleman sees himself running for office again.

    Coleman has accumulated a list of grievances that he could test in court: the missing ballots in Minneapolis, the alleged double-counting caused by the treatment of duplicate ballots, and refusal of many counties to consider some rejected absentee ballots that Coleman wanted considered. But Coleman has already lost some version of all these arguments in decisions made by the Canvassing Board (four of whose five member are, after all, judges or Supreme Court justices) or before the Supreme Court itself. And he would have to pretty much win them all on the next round to make up 225 votes.

    One keen observer of the legal issues told me over the weekend that Coleman will really have to argue that the whole recount has been so riddled with errors that it needs to be redone from scratch. I doubt he will try to make that argument or, if he does, that he will get very far with it.

    3. A new seven-day clock starts ticking. If you're reading this piece, you probably already know this, but just in case: The state Canvassing Board is not the final step. A newly elected senator normally (like in every case until now) goes to Washington with a certificate of election signed by the secretary of state and the governor (and, in Minnesota at present, that makes one DFLer and one GOPer; how bipartisan can you get?). But state law quite plainly prohibits those two officials from signing the final certificate until "seven days after the canvassing board has declared the result of the election." That's because the law also gives the losing candidate seven days from the final Canvassing Board action to file a contest. So, if he wants, Coleman can take up to seven days to decide whether to take the matter to court.

    4. The seven days that may not. Here's one of the lollapaloozas I heard over the weekend. The Franken campaign is considering asking the courts to rule that the seven-day waiting period should not apply to an election for U.S. Senate. Why not?

    Well, the statute in question specifically exempts elections for the state Legislature from the seven-day waiting period. The argument, if the Franken team chooses to make it, would be that this exemption is based on the fact that the state House and Senate are the final judges of the elections of their members. Well, the U.S. Constitution also makes the U.S. Senate (and House) judge of the elections of its members, too. So why should elections for those offices not be likewise excluded from the seven-day wait for issuance of a certificate of election?

    The answer to that question seems obvious to me. Maybe the exclusion should apply but it doesn't because the statute doesn't say it does. The Legislature that enacted this law could have exempted those federal offices as well, but it didn't.

    To emphasize, I was not told that the Franken campaign would actually take this argument to court, only that they have considered it. The argument seems weak to me. But it might be possible to make a similar argument to the Senate itself, in arguing that the Senate should seat Franken without waiting for a certificate of election. Which leads us to …

    5. Franken swears the oath? If the Canvassing Board declares Franken the winner on Monday, Franken would like to be seated, at least provisionally, by the U.S. Senate on Tuesday when it gathers for the first meeting of the new session, a meeting that normally includes the swearing-in of newly elected and re-elected members.

    Sen. Amy Klobuchar has suggested that Franken be seated, with a provision that he can be unseated if the courts subsequently decide that Coleman won the election. (This procedure, called seating a senator "without prejudice," has been used before, but apparently never in a case where the senator didn't have a state certificate of election.) Sen. Charles Schumer, D-New York, made the same suggestion yesterday.

    There's a certain awkwardness to Schumer's statement, since he is slated to chair the Rules Committee in the next Senate, and election issues like this one are traditionally assigned to the Rules Committee.

    6. Repubs say no. Sen. John Cornyn of Texas, the new chair of the National Republican Senatorial Committee (the committee that works to get Republicans elected to the Senate), has taken the lead in stating that Senate Republicans will oppose the seating of Franken until he has a state certificate. And, if all 41 Senate Republicans agree with him (Cornyn admitted that he hasn't taken a whip count on that), they have the votes to filibuster.

    It's also not clear to me why Cornyn, rather than Senate Republican Leader Mitch McConnell of Kentucky, is speaking for the GOP caucus on this issue. McConnell may make his feelings known on Tuesday.

    It's perfectly understandable why Republicans are in no hurry to recognize Franken's apparent narrow victory. On the other hand, we are in a period when both parties are anxious to at least be perceived as a lot less partisan than they in horrid long ago Bush era. (Oh, excuse me, that's not quite completely over yet, is it?) Filibustering on the first day of the new Congress to block the seating of Franken might set the wrong tone, doncha know. But, of course, the Republicans would say it was the partisan aggressiveness of the Dems in trying to seat a senator who wasn't even certified by his state that made it necessary, and off to the races we would go.

    7. What does Harry Reid say? By tradition (but not by rule), before the swearing-in ceremonies, the majority leader makes some opening remarks, describes any sticky election issues hanging over the Senate and indicates how he plans to handle them.

    Sticky issue No. 1 for Tuesday is the nomination of Roland Burris by corruption-stained Illinois Gov. Rod Blagojevich to fill the remainer of Barack Obama's term. That case (plus Majority Leader Harry Reid's stated intention to keep Burris from being seated) has caused such a sensation that when Reid was on "Meet the Press" yesterday, he wasn't even asked for his view of the Franken-Coleman case.

    On the Minnesota matter, Reid has said only that "I believe that tomorrow the bipartisan State Canvassing Board will certify Al Franken the winner. Early on Senator Coleman criticized Al Franken for wanting a recount and wasting taxpayer money. I would hope now that it is clear he lost, that Senator Coleman follow his own advice and not subject the people of Minnesota to a costly legal battle."

    Very diplomatic. But what will Reid do if Coleman doesn't? The guidance I'm getting from senior Democratic Senate staff is that Reid will ask the Republicans to go along with a plan such as Klobuchar suggested, that the Senate seat Franken "without prejudice" and the Dems agree to revisit the question is Coleman wins his court case. But, my contact said, "if they object we can't force it down their throats" because the Repubs have the votes to filibuster, and this is not a battle that the Dems have to fight on Day One.

    So my current expectation is that Franken will not be seated Tuesday unless Coleman concedes before then (and even then, the problem of the mandatory seven-day waiting period might get in the way).

    8. An even weirder lollapalooza than No. 4 above came to my attention a week ago. I have to say in advance that I do not believe, even slightly, that the Senate Dems will try this or even that it received serious consideration within the Franken Team. But I do know that it was discussed.

    As a technicality, all of the senators who were up for reelection in 2008 went out of office at noon on Saturday when their terms expired. Not only the newcomers, but also the reelected senators are technically out of office until they take the oath for a new term on Tuesday. By tradition, they take the oaths in groups of four, in alphabetical order.

    So technically, only the 65 members who were still in the middle of their terms (this is after the resignation of Obama) can vote until the others take their oaths. Then four are sworn in and 69 can vote, and so forth.

    Some Franken staff were working over the list to see if there was a point, perhaps just when Franken's alphabetical group would be called, at which the Dems would have a filibuster-proof majority. The idea was that if a vote could forced at the right moment, the Repubs wouldn't have enough sworn-in members to sustain a filibuster. I fooled around with the Senate list and the only such magic moment I found was right at the beginning, when none of the new or reelected senators were sworn in. Of the 65 who would be have voting privileges, by my count, there would be 39 Democrats (counting the two independents who caucus with the Dems) and just 26 Republicans, which works out to a perfect 60 percent of Dems, enough to invoke cloture.

    I repeat, this was not seriously considered at any level high enough to put it into practice (and bear in mind, it would require all those Dem senators to go along with this crazy scheme, which would quickly go down in congressional history and public opinion as a dirty trick). One high-ranking member of Team Franken agreed with me that it would be crazy to attempt such a stunt.

    9. What difference does it make? It's possible that Coleman's election challenges will drag on for weeks or even months. (In the craziest cock-up in Senate election history, in 1975, New Hampshire went nine months with a Senate vacancy while the Senate itself tried to figure out who had won an election.) At some point it is unfair to leave a state underrepresented.

    And, if Franken's swearing-in is delayed for weeks it will also be argued that the current economic crisis is no time to leave the Senate short-handed. These are fine talking-points. But the most concrete cost that will be paid is that Minnesota's junior senator will slide down the Senate seniority rankings, which have some impact on power and privileges of senators.

    Freshmen senators, sworn in on the same day, are assigned seniority numbers based on several criteria. Those who have previous Senate service take precedence over those who don't, then those with House service, former presidents, vice presidents (Hubert Humphrey went back to the Senate after his vice presidency), former cabinet members and former governors all get an edge. If you have none of those credentials, senators are ranked by the population of their states.

    Franken has none of those credentials, and would outrank only two members of his Democratic freshman class (Jeff Merkley of Oregon and Mark Begich of Alaska) who also haven't held any of those offices, but come from smaller population states. But Franken will fall behind them if he doesn't take the oath on Tuesday. As January proceeds, if Franken is still awaiting the call, newly appointed Democratic senators replacing Vice President-elect Joe Biden of Delaware, Secretary of State-designate Hillary Clinton of New York and Secretary of Interior-designate Ken Salazar of Colorado will potentially be sworn in before Franken, slipping him further down the list (and who knows when the Obama vacancy from Illinois will be filled?).

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    Eric Black
    Eric Black Ink

    minnpost.com/ericblack



    Eric Black is a former reporter for the Star Tribune and Twin Cities blogger. He writes about politics and government of Minnesota and the United States, the historical background of topics and other issues. Click here to view Eric's previous postings at former blog, Eric Black Ink. He can be reached at eblack [at] minnpost [dot] com.

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