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Senate recount: It's unlikely Coleman will win in court

Norm Coleman
MinnPost photo by Jay Weiner
Norm Coleman is surrounded by supporters and members of the media following his press conference on Tuesday.

Norm Coleman's public statement Tuesday, in officially announcing that he would contest the election result, struck the right tone. Having a small mob of supporters cheering and chanting may have overwhelmed the actual Coleman statement, but reading it in a quiet room, Coleman comes across low-key and high-toned, lacking in partisan snipes, faux outrage over the wrongs done him in the process to date or phony triumphalism about the ultimate outcome.

(On that last triumphalism point, I think Al Franken would have been better advised on Monday not to declare victory. As Yogi said, "It ain't over till it's over." Franken should have found a way to celebrate the importance of the final Canvassing Board tally without declaring victory, although, to his credit, Franken spoke compassionately about what Coleman must be feeling and acknowledged that there might be legal battles ahead.)

And I hope reasonable DFLers will acknowledge that Coleman has every right to contest the result. The law provides for it. The margin is still microscopic (although 225 looks like a landslide after where things stood for the previous couple of weeks). I would expect Franken to do the same if the Canvassing Board's scorecard were reversed.

But it would be a lot easier for Dems to be patient if Republicans would allow Franken to be seated without prejudice, based on a solemn guarantee from Democrats they will remove Franken and seat Coleman if the Minnesota courts decide Coleman won the election. More on that below.

All that being said, and having just read Team Coleman's court filing, (PDF) the chance that the courts will reverse the result seem slim. It seems unlikely that the courts will agree to reconsider all the votes that Coleman is raising, and some of those involve issues that might add to Franken's lead.

The petition has an almost generic quality. Think of every imaginable way that a vote for Coleman that should have been counted was rejected, add every way that a ballot given to Franken should have been disqualified, assert that all of these things happened and that if the courts will simply revisit the entire recount they will come to a different outcome.

The missing ballots
Most of the issues are familiar, and either the Canvassing Board or the Supreme Court has already considered them. Take the 133 missing Minneapolis ballots that the Canvassing Board decided to count. This is one where the Canvassing Board actually took evidence, received an opinion from the attorney general, consulted the law books and allowed the two campaigns to make arguments. Four of the five canvassers are judges. The decision was unanimous. What are the odds the next judges who consider the same matter will see it differently? (And if they do, bear in mind, it won't lop 133 ballots off Franken's margin, only 46, which was Franken's net advantage from that batch of ballots, as counted on Election Night before they went missing.)

Then there's the double-counting issue involving duplicate ballots. I've long thought this is one of Coleman's better arguments. It seems quite likely that some ballots were double-counted because election judges failed to label the duplicates properly. Team Coleman says it now has witnesses who will add to that argument, witnesses it couldn't use earlier because the Canvassing Board doesn't hear witnesses. It will be hard to establish with precision how many improper extra votes Franken got by this method, and the courts are not going to adopt a fudge factor. Courts don't do fudge factors. Plus, as Franken's lawyers always threatened, they have similar complaints rooted in Election Night incident reports, that they are prepared to bring forward. Hard to see a big net gain for either side.

The biggest number you've been hearing is 654 ballots. These are absentee ballots that the counties decided were properly rejected on Election Night for problems of signature, registration, double-voting or untimeliness. It's important that you not be taken in by the size of that number. Team Coleman has always acknowledged that most of those ballots were probably correctly rejected. They had a much smaller subset that they thought had a lot of potential. For most of the 654, Coleman only wanted someone to look at them to confirm that they had been properly rejected. Bear in mind, these were rejected on Election Night, and then rejected again when the counties were asked to reconsider their first rejections. Coleman is seeking a third consideration by another party.

But please note that on the last two categories — the double-counting argument and the reconsideration of rejected absentee ballots — Coleman's lawyers were told by the Canvassing Board or the Supremes that the appropriate place to have those issues considered was an election contest. Coleman is now taking them to exactly that process. This underscores what I said above. Coleman has every right and almost every reason to ask the courts, when they are convened as witness-and-evidence-hearing tribunals, to hear the witnesses and evidence on these points. Those witnesses and evidence (as opposed to the arguments) have not been heard by any judges, even those sitting on the Canvassing Board.

The kitchen sink
After going through the familiar categories above, the Coleman petition begins to take on a kitchen-sink quality. Every imaginable way that a vote that should have been disqualified was given to Franken, and every way that a vote that should have been given to Coleman was disqualified is asserted as a general statement without numbers or specific cases. Coleman's lawyers want a judge to look at a bunch (not clear yet how many or which ones) of challenged ballots that the Canvassing Board called against the team, and see if the judge might disagree.

Pardon the sports analogy, but consider a football game. Your team was trailing when the clock ran out. There were, of course, several close calls by the refs that went against you (but others that went in your favor). You have no basis to argue that the refs were biased (the Canvassing Board consisted of two known Republicans, one known Democrat and two judges of politically ambiguous extraction — and they were unanimous on most of the decisions they made). And you have already appealed to the replay officials (in this case, appealing Canvassing Board decisions to the Supreme Court) and they have declined to overrule the calls made by the refs on the field. What Coleman is doing now is like asking another set of refs to look at the plays, only the ones that went against him, to see if they might see something different from what the original election officials and the Canvassing Board and the Supreme Court saw.

But one difference is that the NFL has no higher appeal than the replay officials. Because the issue here is more important, Minnesota law does provide for such an additional review. So we go to the next level.

Coleman said yesterday (actually echoing something Secretary of State Mark Ritchie has been saying all along) that the key value is to get the outcome right, no matter how long it takes. Agreed.

I've heard estimates from a few weeks to a few months to complete the contest. It should take as long as it takes for Coleman to have his day in court. But the delay does have consequences. Minnesota will be underrepresented in the Senate, and the Senate will be short-handed as it deals with some of the biggest issues to face the nation in decades. I don't mean to get too misty-eyed about it. The republic will survive a few more months without an extra comedian in the Senate. But the longer the contest lasts, the more it will look — in addition to the appropriate final stage of a careful and really very well run election process — like an excuse for the Republicans in the Senate to keep a Democratic vote on the bench.

A couple of days ago, the Washington Post asked me and several others who know a lot more to contribute a few sentences to an op-ed seminar on the Franken Coleman question. Here's what I wrote:

Because of a quirk in Minnesota law, the final state election certificate cannot be signed until the court cases (we call them "election contests") have been resolved on final appeal. This could take weeks or months. If they choose, Senate Republicans can leave the seat vacant until then. Sen. John Cornyn, who has been speaking for the party on this matter, says that is their inclination. Senate Democrats don't have the votes to break a filibuster on the question.

But if the Republicans want to make a gesture of rising above the hyperpartisanship of recent years, this is a great opportunity. The Republicans should agree to seat Franken "without prejudice," pending the outcome of the legal contests. The Democrats should respond with an ironclad guarantee that if the Minnesota courts conclude that Coleman actually won the election, they will remove Franken and seat Coleman.

Everyone off whom I've bounced my suggestion has called it some version of unrealistic or naive. I can live with that.

Historical precedent
I would only throw in one small historical precedent, the most recent case of a seriously disputed Senate election.

In 1994, Democrat Mary Landrieu won a close and hotly disputed election over Republican Woody Jenkins for an open Senate seat from Louisiana. There were serious allegations of fraud on Landrieu's behalf. (Pause here for obligatory eye-rolling over the likelihood of fraud in Louisiana.)

On the opening day of the Senate, the majority leader suggested that the Senate seat Landrieu "without prejudice," which in Senate parlance means that they could later reverse their decision if subsequent investigation proved Jenkins had actually won the election. The minority leader seconded the suggestion, which was accepted by the Senate. The case was referred to the Rules Committee to investigate the fraud.

The committee worked until OCTOBER! Landrieu participated fully in the Senate but lived with a somewhat provisional status

The investigation turned wild. It turned out that election fraud had probably been employed on behalf of both candidates, but apparently — as far as the committee could ascertain with the benefit of the FBI — not enough to change the outcome and the Democratic misbehavior could not be pinned on Landrieu. But it also turned out that a Jenkins associate had been coaching witnesses to lie about fanciful schemes to manufacture Landrieu votes. Several witnesses recanted their testimony.

The Rules Committee ultimately voted unanimously that Landrieu should be seated with full status (she's been reelected twice since, including this past November).

Here's the punch line, at least for present purposes: The majority leader who arranged for Democrat Landrieu to be seated was Republican Trent Lott. The Repubs had a solid 55-member majority that session and could easily have left the seat vacant pending the final investigation. Instead, they naively and unrealistically allowed the apparent winner to take her seat without prejudice to Jenkins' right to overturn the result if he had the evidence.

I trust the Coleman-Franken contest will be resolved before October. But however long it takes, the political temperature of the problem will be lower if the apparent winner is allowed to be seated, without prejudice.

If you'd like to read what the other contributors wrote for the Post on the question, it's all here.

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Comments (27)

"Everyone of whom I've bounced off my suggestion has called it some version of unrealistic or native."

naive, not native.

Any word if Lizard People or Flying Spaghetti Monster will be filing suit as well?


Thanks for the copy of the filing. It will take a while to digest 200+ pages, though.

In the meantime, reading the first nine, I suspect the Coleman campaign believes it will gain more than your comments suggest.

We'll just have to see.

Whether Coleman has the legal right to contest the impartial Canvassing Board's findings or not, the fact remains that by suing, he is going against his word. His selfishness and mistrust of the democratic process will cost us a lot of money we don't have. For someone who would prefer less government, which includes judges, boards, secretaries, election officials, etc., his attitude and approach strikes me as hypocriticial. Hardly the kind of moral and ethical qualities I am looking for in a US Senator...

You wrote, "Everyone of whom I've bounced off my suggestion has called it some version of unrealistic or native."

Native Minnesotan?

Why doesn't Coleman the Chameleon give up graciously and allow Sen. Franken to go to Washington?

"Courts don't do fudge factors."


So without a complete absence of reasonable doubt that one, just one duplicate vote was counted, the court has no recourse but to mandate another vote.

Georgia saw the need to do just that, and it went very smoothly; do we value the franchise of our citizens less than they?

Eric writes
"Coleman said yesterday ... that the key value is to get the outcome right, no matter how long it takes. Agreed."

I disagree. At some point we have to ask how 'right' we have to be. Given the fallibility of voters and vote counters (both machine and human) it is literally impossible to perfectly and exactly determine every voter's intent in the election. The canvassing board has made its best effort in determining the voters' intent. Certainly there is an argument to be made that contesting the election is a valid, and even constructive reaction to the canvassing board's count. But to argue that we have to get it 'right' - no matter how long it takes - is to demand a perfection that is impossible to achieve. At some point we have to say "This is the best we can do," and move on.

Perhaps the best lesson we can learn is to acknowledge that our system is inherently flawed (though those flaws may show up extremely infrequently), and could - and probably should - be fixed before the next election. Personally I prefer IRV, but would accept an automatic run-off, particularly if nobody wins the majority, as a viable alternative.

"So without a complete absence of reasonable doubt that one, just one duplicate vote was counted, the court has no recourse but to mandate another vote."

Not quite .... the onus is on the person filing the suit (Coleman) to prove beyond a reasonable doubt that enough votes were improperly counted to affect the outcome of the election. Otherwise his case that he suffered damages fails.

I worked through the numbers and came up with the same conclusion - Coleman has no chance, for certain if its only the 933 disputed/dups/missing ballots in play. After you back out the 16% that probably go to Barkley, he would have to beat Franken 65-35 on the ballots in play to make up the gap of 215. He probably didn't beat Franken 65-15 within his immediate family.

His only chance is that the 3-judge group somehow finds a fresh, large pile of uncounteds (thousands, not hundreds), and they go overwhelmingly in Coleman's favor. Given how exhaustive the search has been and how Franken seems to be stronger with ballots of marginal quality, he hasn't any chance.

Okay, many have questioned Norm's contestation after pressuring Franken to concede the day after the election and MinnPost also questions Norm's claims that only a few Minnesotan's want to move on, but the newest Norm claim that needs to be investigated is why he keeps saying that the voters will decide as he throws this into the courts including possibly Federal Courts including the US Supreme Court.

It seems to me that Coleman now hopes the voters will not decide but rather the courts. If the votes of those from Minneapolis whose ballots are missing are thrown out, how will that be letting the voters decide?

It seems that for every argument Norm's attorney's are preparing to raise about equal protection, Al's attorney's can fire back that removing votes may be a more serious violation! And I don't see how Norm gets away with claiming that we are letting the voter's decide! But clearly it is the voters who will not be represented in the Senate for the foreseeable future.

Just curious, are there any conservatives on staff at MinnPost? Just curious. This thing gets more liberal by the day, shilling for Al Franken and the DFL without shame. Mr. Kramer, it's time to hire some people from the other side of the aisle. Not liberal Republicans but some real conservatives who can offer this place some balance. Right now it's just a liberal blog playing newspaper.

"are there any conservatives on staff at MinnPost?"
Given the lack of content in posts like this, it would appear that conservatives have little to blog about.

John Jordan:

MinnPost has always been a number of degrees left of center and avowedly so.

Eric Black, on the other hand, while generally sympathetic to their editorial policies, has produced some of the best objective reporting and analysis seen anywhere -- and they keep him on.

If you think comments here are liberal, you should see some of the recent comments on The Big Question since Eric left. Makes these comments seem mild by comparison.

It just isn't realistic to expect our system to resolve an election this close, to the complete satisfaction of all parties. I think the real question - and a very interesting question - is, why was this election so amazingly close?

Is it somehow a consequence of campaigns consisting entirely of negative attack ads? Or is it happening because the 2 major parties are essentially identical marketing machines, staffed by political and media professionals of equal ability? Does the media's nonstop "horserace" coverage - which tends to promote the underdog and attack the leader - inevitably cause a race to tighten?

It's not supposed to work like this.

I don't see how the facts of this issue have been twisted or spun in the reporting. The facts are that the Coleman campaign wanted the process shut down until they found themselves behind, then they wanted the process extended; and the Franken campaign wanted the opposite. Black was pretty objective about how the campaigns got to this point and the likelihood of success for various follow-up strategies.

The posters might have a POV (I sure do - Norm's a creep and we need to watch out for wives and daughters if he finds a lot of time on his hands), but that's what posters do.

I can't see how the most nut-case extremist could make much of a story out of corruption or a tainted process, at least according to the Republican judges who were there when it went down.

@jim hughes

"It just isn't realistic to expect our system to resolve an election this close, to the complete satisfaction of all parties."

I'm not so sure about that. We don't really know Coleman's reasons for contesting the result. It could be that deep in his heart he knows the recount was fair and transparent and that he really didn't get as many votes. But he is contesting it because he has a slim chance of being declared the winner. So in his heart, he may be satisfied with the result. Of course, if someone is only satisfied with the result when they are declared the winner, then it doesn't matter how close the election is.

"I think the real question - and a very interesting question - is, why was this election so amazingly close?"


Provisional seating of a member of congress, while it sounds good on the surface, poses an interesting legal difficulty. Suppose a law passes or fails to pass by 1 vote - the vote of the provisional member, and the permanent member after the election is decided states he/she would not have voted the same as the provisional member. Wouldn't the constituency of the member's state have grounds to sue to overturn the results of the congressional vote?

A horse race isn't rigged because it ends up in a photo finish -- same for the Olympics.
Ties happen.
In politics, it just means that about the same number of people support two different (sometimes very different) positions.
Third party candidates are not necessarily the cause. It's conceivable that an equal number of the third party supporters would prefer each of the first two candidates as a second choice, so instant runoff voting might not be a solution -- in fact, it could even cause a tie!
We just have to acknowledge that ties happen, and institutionalize some way of dealing with them, such as requiring a coin flip when the vote is within the margin of error of the election process.

Not to carry this thread beyond its 15 minutes, but the margin of counting accuracy strategy has its own problems. What would happen if Coleman (or Franken) had 'won' on election day with 5 votes fewer than the error range, and thus it goes to the coin flip? Would the opponent be enjoined from arguing that the votes should be recounted to confirm its a tie? I think wherever the line is drawn, there will be someone either losing the election or having their chances in a coin flip bolstered/diminished, and therefore they would want further certainty.

Great thread, gentlepeople. I'm not saying stop. I'm just saying thanks.

And thank YOU, Eric!

On the eve of the U.S. Senate convening its 111th session and in light of Minnesota ONLY having one Senator being sworn in and the bipartisan Minnesota Election Board declaring Al Franken the winner of the recount, I don't think it was inappropriate for Franken to declare victory in the race. Remember, Franken did acknowledge possible court challenges and expressed sympathy for Coleman but in politics voids and inaction are not tolerated for long.

I think it is childish for supporters on either side to get moody and emotional about declaring victory. We want our political processes to be transparent and accountable but we also want it to be decisive and move forward, not to get entangled in the endless arguments of partisanship.

Franken did the right thing to step forward and a say he was ready to serve and go to work for Minnesota as the Senate gathered in D.C. Anyone who pushes this process closer to a conclusion should be applauded.

Jim Camery: A tie is a tie. Nobody "declares a tie" and flips a coin. Numerically, a tie is each candidate receives the EXACT same number of votes not >5 or <5 or in some kind of arbitrary frame of closeness.

The problem with your litmus "true conservatives" test John Jordan, is that there are not many smart and intelligent Republican conservatives and if they show any sign of being pragmatic, incisive, analytically skilled like Elmer L. Anderson, Arne Carlson, David Durenberger, Arlen Erdahl for instance then wachos call them "liberal" Republicans.

The litmus test you want to impose is if a person is an hysterical, flame-throwing, right-wing reactionary with no ability to compromise or break from your ideological line, then, the are a part of the liberal establishment or the MSM. You standards are worse than the Gang of Four in China and you've purged from the GOP anyone who doesn't conceal-and-carry, hate gays, wants to repeal the separation of church and state and supports equality for all you want to call them surrender monkeys or socialists.

Nobody has an obligation to employ or give voice to right-wing militant extremists.

Robb says:
"Nobody has an obligation to employ or give voice to right-wing militant extremists."

Say you're sorry! Please!

I'm sure you would not want the same dictum applied to those sharing your opinions, by those who don't. Quite a few of them are employers.

Freedom of speech is not freedom of speech if it means anyone who dissents can lose both his/her job and right to be heard.

Liberals have been accused of holding such views, and such statements only tend to confirm the accusations.

Say you're sorry! Please!

John E Iacono; No apology offered. I completely support freedom of speech and even encourage rabid militant extremists to openly express their opinions so that we know NOT to hire them and can keep an eye on them.

Especially so, when their extremist views are contrary to our Constitution and Bill of Rights and they seek to deny others liberty and equality, it is important to know where they are hiding and the danger to freedom and democracy they secretly harbor.

If you feel Minnpost is obligated to hire right-wing militant extremists, I suppose the next thing we will hear from you is that they also need to provide a writer who expresses the views of the Taliban or the American Nazi Party -- isn't that the logical extension of your bazaar notion of "freedom of speech" at that Minnpost MUST have someone on staff who expresses these "dissents."