Coleman-Franken recount: Some looming scenarios

Happy New Year, MinnPost readers.

Minnesota Senate Race Recountland hits 2009, still full of twists and turns. Here’s part of the tale of where things stand:

1. It is altogether possible (though definitely not a done deal) that Al Franken will be sworn into the U.S. Senate on Tuesday. Midday update: A top Republican says no way this is happening.

2. The Minnesota Supreme Court will make a decision very soon, possibly even today, that will determine whether that is possible. (But even if it’s possible, still not a done deal.) Midafternoon update: The Supremes did respond to Norm Coleman’s petition, but only to ask for more information.

3. Unless the Supremes change the rules of the game today, the secretary of state’s office will spend the weekend opening and counting the infamous wrongly-rejected absentee ballots.

The universe of ballots they will count will be those that the original county in which the ballot was cast and both campaigns agreed was wrongly rejected on Election Night. I expect Franken’s current lead of 47 votes to increase, possibly quite a bit, over the weekend.

This expectation is not based only on the analysis, which you may have read before, of which precincts the ballots come from, but on my current understanding that Team Franken went to extensive lengths, ballot-by-ballot, to ascertain the likely votes inside those sealed envelopes. In some cases, this included interviewing the voters and taking affidavits. In other cases, what the Frankenites called the “absentee ballot chase” used DFL databases to identify likely Franken votes.

4. On Monday, the State Canvassing Board may complete its work, announcing a winner of the recount, which, based on what’s known and now and what’s expected over the weekend, is likely to be Franken.

5. It’s also expected that Sen. Norm Coleman’s campaign will go to court, seeking to overturn that result. Even if Franken gets seated in the Senate, the election will not be truly done until the court challenges, usually called “election contests,” are finally adjudicated. Coleman has laid the groundwork for several different arguments, but I do not at present see the one that’s likely to win him another term. Of course I could be wrong.

6. The state’s final certification of a winner, which must be signed by Secretary of State Mark Ritchie and Gov. Tim Pawlenty, cannot be issued until at least seven days after the Canvassing Board declares a winner, and very likely longer, because by state law the final certification must also await the final results of any court challenges to the election result.  (See Subdivision 2 of this state law.)

7. The biggest recent development was Coleman’s application to the Supremes on Wednesday seeking an emergency intervention to change some of the scenarios above. Specifically, Coleman’s lawyers asked the Court to revise the procedure that it had set up for creating a final list of previously rejected absentee ballots that should now be opened and counted.

Instead of decisions made, county-by-county, on which absentee ballots to count, Coleman now wants every absentee ballot that any county or either of the campaigns believe should be counted sent to St. Paul and considered by the secretary of state’s office, with the proviso that either campaign can still veto the counting of any ballot, for cause. (Did you follow that? For example, a ballot that Coleman thinks should be counted but Franken thinks shouldn’t, would be sent to St. Paul, but after it gets there, Franken can still veto it.)

This petition to the court has been generally portrayed, by the Franken campaign but also in media reports, as a desperate Colemanian attempt to buy time and bring into the picture hundreds of absentee ballots that the counties had rejected and had concluded were properly rejected.

It may be both of those things. But the process, established by the Supreme Court, for determining which absentee ballots to count, has indeed produced a good bit of chaos and, according to Team Coleman, a lack of uniformity across the various counties. I am somewhat sympathetic to this part of the argument.

To tell you the truth, until reading the exhibits (PDF) Coleman’s attorneys submitted to the court, I was unaware that the process was designed to create an opportunity for the campaigns to bring new absentee ballots under review (in addition to those the counties themselves had already decided were wrongly rejected). That makes it less outrageous that Coleman was now asking for reconsideration of 654 more ballots.

But under the procedure, either the county from which the ballot originated or the Franken campaign had the power to reject those ballots. And there was a deadline by which those ballots had to be submitted to the counties, and they had to be pre-screened by the Franken campaign, which could veto any of them that it believed had been properly rejected in the first place.

Instead, Team Franken rejected them all on the grounds that it didn’t receive its first notice of which ballots Coleman wanted to reinstate until after the deadline. Team Coleman says it didn’t miss the deadline by much and that getting all valid ballots counted is more important.

For my money, the biggest source of chaos in the absentee ballot process was the Supreme Court’s original ruling that gave either campaign the power to veto any of the ballots. The decisions on which absentee ballots to count should have been made by neutral election officials, not the campaigns. I can’t find anyone in town who thinks the court’s original concept was a good idea.

The Supremes received Coleman’s petition late Wednesday and, at this writing, hasn’t decided whether to reject it, ask for briefs, hear arguments, or what. I expect they will give some indication today of what they will do or at least when they will take the next step.  Unless they settle the matter quickly, they will bump into the weekend’s scheduled counting of the ballots in St. Paul and Monday’s meeting of the Canvassing Board.

The Senate scenario
If the court, or the secretary of state’s office, or the Canvassing Board does anything to slow down the current schedule by even one day, most of what follows will go out the window. But if the Canvassing Board on Monday declares Franken the winner of the recount, Team Franken is definitely at least strategizing about whether they can get him seated on Tuesday, and at the moment I do not believe it is that far-fetched.

On Tuesday, the U.S. Senate will hold its first meeting of the new session. The business of the first day is described in this brief (PDF) from the Congressional Research Service. The normal first order of business is to swear in the newly elected and reelected members, but before that process starts, if there are any election controversies, the majority and minority leaders may discuss how they plan to deal with them.

Majority Leader Harry Reid may, at such a moment, suggest that Franken be seated “without prejudice,” a phrase that in this context means that Franken can be sworn in, given an office and a staff and full power to vote and participate, but with the understanding that if subsequent developments (for example, the results of Coleman’s court challenges) indicate that Franken has not been properly elected, the Senate can change its ruling on who gets the Minnesota seat.

Political Scientist Steve Smith, a Congress expert who lives in Minnesota, is very skeptical. He said he is unaware of any precedent for the seating of a senator-elect who has not received a state certification of election. As I mentioned above, there is no possibility under Minnesota law that Gov. Pawlenty will sign a certificate until all the election contests are resolved. Even if Coleman were to concede on Monday (not gonna happen), Pawlenty can’t sign the certificate for seven days.

Smith is very smart and knowledgeable. But so is Amy Klobuchar. Earlier this week, Sen. Klobuchar publicly recommended that, if the Canvassing Board has finalized its work, the Senate should “consider seating that person pending litigation.” Klobuchar is also a very cautious operator. In my opinion, there’s little chance she would have said that unless she knew that Reid and the Dem caucus were open to the idea.

It’s possible (although I have no indication of this) that the Republican caucus will have agreed to such an arrangement, based on Reid’s assurances that the Dems will make it right if Coleman wins in court.

My best Coleman sources say they think this is unlikely, and that in fact most Republicans and some Dems would block a move to seat Franken, even under a “without prejudice” agreement.

Under Senate rules, a motion to seat Franken would be debatable and amendable, which also means it is filibusterable.

Sen. John Cornyn, R-Texas, chair of the National Republican Senatorial Committee, said: “I expect the Senate would have a problem seating a candidate who has not duly won an election.” He didn’t explicitly threaten to organize a filibuster, and he would need 39 of the 41 Repubs to pull it off.

(If you’re doubting my math, assuming that the Obama seat from Illinois and the second Minnesota seat are vacant, the number of votes needed to sustain a filibuster drops to 39. Obama has already resigned his seat but Vice President-elect Joe Biden has not, and is planning to take the oath for a new Senate term on Tuesday, then resign sometime before Inauguration Day. Sens. Hillary Clinton of New York and Ken Salazar of Colorado, both of whom have been named to cabinet positions, are planning to keep their Senate seats until their cabinet nominations are confirmed.)

Personally, I’m skeptical that the Republicans want to start the year with a filibuster unless there is pretty strong evidence that Franken and hyperpartisan Dems are trying to steal a seat that Coleman actually won.

Some Republicans may want to wave the bloody shirt of partisan outrage, but their argument will be undermined by the fact that Republican appointees on both the Canvassing Board and the Supreme Court have agreed with most of the major rulings so far.

But my Coleman sources argue that the Dems would be crazy to start the year with a power play that could hold up business.

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Comments (8)

  1. Submitted by Eric Ferguson on 01/02/2009 - 10:34 am.

    Judging from Sen. Cornyn’s statement, it appears the Republican caucus is on the “wave the bloody shirt” side. It’s just on sign, but there was also Pawlenty going on Fox and agreeing the ballots found in the car were suspicious instead of saying the story was wrong or saying he didn’t know what the story was. Coleman spokesmen and GOP state party leaders have been talking about the recount process being biased for Franken. Since there has been no evidence of theft yet they’ve been talking it up since the beginning, I have to think this is more than just gaming the recount referees, and setting the longer-term PR campaign.

    I also point to the Republicans’ long history of using minor or fake issues to arouse outrage, even when it ends up backfiring. Gay marriage, Terry Schiavo, telecom immunity, … I’m sure anyone reading this can add more. They’re bound to use Franken’s “stolen” senate seat too, regardless of the evidence.

  2. Submitted by Duke Powell on 01/02/2009 - 11:25 am.

    As a partisan Republican, I have closely followed this recount. This story is the best synopsis that I have seen regarding the present situation. I intend to pass it around.

  3. Submitted by Ellen Brown on 01/02/2009 - 11:53 am.

    Thanks for your careful update, Eric. Now could you please explain:
    1) the difference between the challenges/issues the Supremes have been hearing thus far and the “contest” that Coleman is bringing now. Not the difference in the issues but the difference in the processes.
    2) how did this election issue get to go directly to the Supreme Court rather than through the district/appeals process? I assume part of it is because it is a statewide issue. But is that all?

  4. Submitted by Annalise Cudahy on 01/02/2009 - 01:23 pm.

    Thanks, Eric, for a lengthy summary of a lengthy process that is rapidly approaching the endgame.

    Some time ago, while we were waiting on the process, I penned this little poem. It’s fun to remember when this was slowly playing itself out as they counted.

  5. Submitted by John E Iacono on 01/02/2009 - 03:51 pm.

    Nice recap.

    I won’t hold my breath for final results.

  6. Submitted by David Thompson on 01/02/2009 - 04:33 pm.

    I think Coleman waited too long before asking the Supremes to change their order. His request to revisit hundreds of rejected ballots at the last minute also looks like an act of desperation. The only reasonable compromise that the Supremes might adopt would be, to let the county election judges do their job. If they think the votes were wrongly rejected, so be it. It would have been so simple to do it this way from the beginning!
    In the absence of a reasonable compromise, I predict the Canvassing Board will determine that Franken has won the election. I also predict the Supremes will deny Coleman’s suit to overturn the results, since the process used to produce those results was dictated by the Supremes themselves.

  7. Submitted by Erich Russell on 01/02/2009 - 08:18 pm.

    I question subject matter jurisdiction in the Minnesota Courts to conduct an election contest in a US Senate race where the Constitution expressly reserves to the Senate the power to judge elections of members. Courts do not render advisory and non-binding opinions; especially so in matters political. This election contest could be summarily dismissed on jurisprudential grounds. The Court has jurisdiction of the proceedings before the Canvassing Board. That could be their last say. For that reason and because I was an absentee ballot judge, I tend to think that the rejected ballots deserve more uniform treatment than that accorded by the majority of the State Supreme Court on first hearing.

  8. Submitted by Brad Lundell on 01/03/2009 - 10:09 am.

    Bloody shirt? I heard both campaigns were lined up outside Joseph A. Bank stocking up.

    Seriously. Very nice job Eric. This really lays everything out clearly and concisely.

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