It may be a long shot at this point, but the Norm Coleman-Al Franken contest could be decided on the floor of the U.S. Senate itself.
The U.S. Constitution is brief and quite clear on this point, to wit:
“Article I, Section 5. Each House shall be the judge of the elections, returns and qualifications of its own members.”
The House and Senate have gotten involved in more election challenges than you might think. Usually it leads to a result fairly quickly. The most recent Senate case, involving Mary Landrieu’s election from Louisiana in 1996, the Senate took 10 months before fully certifying Landrieu (although she was allowed to take her seat while a committee considered her opponent’s allegations of fraud).
But given the possibility of filibusters in the Senate, it can get really weird. Once, in the aftermath of a 1926 Iowa Senate election, the Senate seated the apparent winner then, after considering the objections of his challenger, removed the senator and seated the opponent.
And if you really want to push the what-ifs, the situation could lead to a redo of the Minnesota Senate election. It happened once, in what is generally known as the closest Senate election in history, out of New Hampshire in 1974. It led to months of multiple recounts, vote after vote in the Senate frustrated by filibuster after filibuster. Ultimately, New Hampshire did a do-over election 10 months after the first one.
A few details and links on that one below. But before we enter into crazy speculation, none of this is likely to occur. Minnesota is believed to have among the best voting machines, election laws and recount processes in the nation. The recount that is now under way, plus any court challenges that follow, could produce a clear result. Everyone to whom I spoke said the Senate would not be looking for an excuse to get involved.
But if the senators are inclined to do so, “they can get involved in any challenged election for any reason,” said Don Ritchie, one of the Senate’s official historians. (No relation to Mark Ritchie, by the way.)
Political scientist Larry Jacobs of the Center for the Study of Politics and Governance called the prospect of the Senate deciding to seat someone other than the winner of the recount “more remote than remote.”
Congress expert Steve Smith of Washington University was less dismissive of the possibility. Given the makeup of the new Senate, Smith said, if Democrat Franken comes out ahead in the recount, there will be little that Republicans can do. But if Coleman is certified the winner by Minnesota’s process, under very close and cloudy circumstances, it could get ugly. Democrats will weigh the advantages of picking up one more seat against the danger of appearing to be hyperpartisan cheaters.
Jacobs says that the reasons the Senate won’t choose to dictate the result in Minnesota include politics, norms and basic fairness. I agree with him that it would be wrong, just plain wrong, for Senate Democrats to use their majority to steal the seat if the Minnesota process clearly shows that Coleman got more votes than Franken. And I agree that the cleaner the result, the less likely they are to do so. But just to make this clear, if they decided to do so, no court can stop them.
Scalia: Nothing the courts can do
In 1984, two recounts showed that a Republican named Richard McIntyre had defeated Democrat Frank McCloskey in an Indiana race for the U.S. House. The state of Indiana certified McIntyre the winner.
The Dem-controlled majority in the U.S. House didn’t like that result, did its own recount and, on a party line vote, gave the seat to McCloskey. The dispute produced a court challenge, decided by none other than Judge Antonin Scalia in his pre-Supreme Court days as an appellate court judge. Writing for a unanimous three-judge panel, Scalia not only agreed that the House majority had the power to overrule the state of Indiana, but also that there was nothing the judicial branch could do about it. And, as Scalia often does, he put it pretty bluntly:
“It is difficult to imagine a clearer case of ‘textually demonstrable constitutional commitment’ of an issue to another branch of government to the exclusion of the courts… than the language of Article I, section 5, clause 1 that ‘[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members.’ The provision states not merely that each House ‘may judge’ these matters, but that each House ‘shall be the Judge’ (emphasis added). The exclusion of others – and in particular of others who are judges – could not be more evident.”
The New Hampshire mess
In the New Hampshire precedent, Republican Louis Wyman won the close count on Election Day, 1974. Democrat John Durkin won the first recount by 10 votes and actually received a state certificate of election. But Wyman successfully demanded a second recount, which he won by two votes in a process dominated by his fellow Republicans. Senators had plenty of basis to disagree on who had actually won the election, but New Hampshire said Wyman had.
If something similar happens with Minnesota’s 2008 election, here, according to Senate officials, is how such a case would come down:
On Jan. 6, the new and newly reelected senators present their state certificates of election and themselves to the Senate for swearing-in. During the presentation of, let’s say Sen. Coleman, with a Minnesota certificate of election, all it takes is for one senator to interject that he has received petitions or complaints from parties in Minnesota who believe that the election result is tainted, followed by a motion to refer the matter to the Rules Committee.
The motion is privileged and could not be filibustered. The Senate would also have a choice, under Senate rules and precedents, to leave the seat vacant while it considers the matter or to allow Coleman (or Franken) to occupy the seat “without prejudice.” The latter move means the Senate is not prejudging whether Coleman (or Franken) has actually won the seat, but wants Minnesota fully represented while the Rules Committee investigates.
(By the way, a detail to note in case it becomes important later: While the newly elected senators would take office on Jan. 6, the new president and vice president aren’t sworn in for two more weeks. In the interim, Vice President Dick Cheney remains the Senate’s presiding officer and would be in position to make Republican-friendly decisions on any rules questions that arose.)
In the New Hampshire case, the Senate actually sent to New Hampshire for 3,500 disputed ballots so committee staff could decide how to interpret the intent of the voters. They even made an effort to mask the ballots so senators could see the marks, but not the names on them, and therefore might be forced to interpret the voters’ intent without knowing whether it helped the Democrat or the Republican.
At the end of any such inquiry, the Rules Committee would be expected to return with a recommendation on who won the disputed election. If the Senate adopts that recommendation by majority vote, the matter is settled. No appeal to any court will get very far since the Constitution empowers the Senate to make the decision.
But the motion to, let’s say, award the seat to Franken, could be filibustered. This is what happened in the New Hampshire case. The Senate was tied up for weeks, took an unprecedented six cloture votes, but couldn’t summon the 60 votes needed to cut off debate. As the summary of the case from the Senate Historical Office says:
“Facing this deadlock, Durkin agreed to Wyman’s proposal for a new election. The Senate declared the seat vacant and the governor appointed former Senator Norris Cotton to hold the seat for six weeks until the September 16 balloting.”
Wyman presumably thought the odds would favor him in a special election. New Hampshire was a GOP-leaning state and Republicans often benefit from small-turnout special elections, but 1975 was also a rough year to be a Republican. President Richard Nixon had just resigned in disgrace, and President Gerald Ford’s decision to pardon Nixon had jeopardized Ford’s political future heading into the 1976 election. Under those circumstances, New Hampshire’s re-do election produced a record-breaking turnout and a 27,000-vote margin for Democrat Durkin.
You may have noticed, in passing just above, that the New Hampshire governor was able to appoint an interim senator. If such a situation arose in the Minnesota (and remember, these are all fairly far-fetched possibilities), Gov. Tim Pawlenty could presumably appoint a Republican, maybe even Coleman himself, to hold the seat until the matter is resolved. And, under that scenario, what incentive would Republicans have to end a filibuster?
On Tuesday, Democrat Mark Begich won the Alaska Senate seat, defeating Ted Stevens, the longest serving Republican in Senate history. Suppose, for the sake of discussion, Republican incumbent Saxby Chambliss wins the runoff in Georgia (he got the most votes in the first round.) Suppose Joe Lieberman has not quit the Democratic caucus. Suppose the Minnesota seat was temporarily vacant. And suppose the Republicans filibustered to prevent the Democratic majority from seating Franken and every senator was voting the party line. There would be 41 Republican senators and 58 Democrats with 60 votes needed to invoke cloture and end a filibuster.
The Senate historical essay on the New Hampshire case, after noting the Durkin won the right to serve the last five years of the term (he was defeated when he came up for reelection), concludes:
“The real winners, however, may have been the Senate’s Republicans – for years a dispirited and hopeless minority. This contest unified their ranks and, as some believed, gave them invaluable tactical experience in dealing with an overwhelming Democratic majority.”