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

Norm Coleman’s statement announcing that he would contest the election result struck the right tone.

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.