The short answer is – it’s very unlikely that Al Franken and Norm Coleman will go back to the beginning and face each other for the votes of Minnesotans. And yet, that slight possibility may be Norm Coleman’s best shot. Or, to put it the other way around, forcing a new election may be the best shot that Republicans have to prevent Al Franken from being seated in the Senate late this spring or this summer.
Why are we talking about this?
The idea has been around for months, but mostly in the background. Former Sen. Coleman himself did more than hint about it in a recent radio interview. Coleman’s legal team has never made it an explicit proposal, but has seemed to leave the idea just barely unsaid on many occasions. Today, after resting his case, Coleman lawyer/spokester Ben Ginsberg said he doubted “whether the results of this election will ever be accurate.” Asked by a reporter (no, not me) whether that means the only solution would be a re-vote, Ginsberg replied, “That’s for the three judges to deal with. They’re gonna have to come to grips with it.”
Then, after the end of the court day, a letter was posted on the court’s website in which Coleman lawyer James Langdon made the idea more explicit than ever, suggesting to the court that:
“Some courts have held that when the number of illegal votes exceeds the margin between the candidates — and it cannot be determined for which candidate those illegal votes were cast, the most appropriate remedy is to set aside the election.”
Langdon gave the three-judge panel citations to cases from several states in which this had happened. So Team Coleman has put the idea of a re-do more clearly on the table.
Why is it unlikely?
Minnesota law contains no provision for a do-over election, nor has one ever occurred to my knowledge. (There apparently is a provision for a coin toss, in case of an actual tie vote, and this has occurred for some small, local offices.) A coin toss may seem too stupid to be possible here, but it is actually in the law and could be used if the final result was a literal tie. But what we are dealing with here is not a literal tie, but what some people are calling a statistical tie or a virtual tie.
A law on do-overs would either have to be enacted by the Legislature, or be created on the fly, by a judge (or group of judges). Judges are bound by the law, which, in the case of election contests states that:
“When a contest relates to the office of senator or a member of the house of representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election.”
There is not discussion of what the court should do if it decides that the election was just too close to call.
Judges do have somewhat mysterious and vague authority called “equitable powers,” which I gather means some discretion to impose an equitable solution. Perhaps, under that doctrine, a court could decide that a re-do election was the equitable solution.
Why is it Coleman’s best shot?
1. For starters, because his next best shot would be to pick up enough votes during the recount/contest to have the judges rule that he “received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election.” Despite protestations of confidence by Ginsberg and Coleman that if all the votes are counted and counted only once, Coleman will be declared the winner, I don’t know anyone who is not on their team, who has been following process closely, who thinks Team Coleman has met that burden. And they did, after all, rest their case yesterday.
2. Because I do know many close observers who believe that the argument Team Coleman has been developing for a re-do is not a terrible argument. That argument is this (and please, if you are rooting for Franken, try to imagine how you would feel about this argument if it was Franken’s last, best shot):
Various counties used different standards in accepting and rejecting absentee ballots, some stricter and some looser. The ThreeJudges have now ruled on the proper standard for deciding which votes were “legally cast.” It’s a high one. Some number of ballots that would not meet those high standards were nonetheless accepted and counted in low-standard counties and they cannot now be uncounted (because they were separated from the absentee ballot applications on which the errors were made and are now mixed in with the rest of the ballots).
So the final tally that the contest court will reach, from which they are supposed to decide “which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election” includes votes that were not legally cast. So, with the margin so small, it is impossible to know with certainty which candidate got the most legally cast ballots.
Remember, I didn’t say it was a great killer argument. There are lots of counterarguments (some on the technical/procedural side, such as that Coleman didn’t raise these points soon enough, some in a rough common-sensical way, such as the argument that if this is a reason for throwing out an election, then all very close elections will have to be done over, since we have learned during this recount that even a state-of-the-art system, administered without fraud, will produce some number of questionable decisions by local officials). I said only that it isn’t a terrible argument.
3. Because Team Coleman can try this argument up to four times. They can make it to the three-judge panel; they can make it on appeal to the Minnesota Supreme Court; if that fails, they can ask the U.S. Supreme Court to take the case; and they can also start over in a federal court. (The Minnesota Supreme Court will certainly hear the case, if Coleman appeals. The U.S. Supremes, and the federal judge from whom they could theoretically try to get another shot would apply complex legal principles in deciding whether to take the case. But they could try.)
4. Because if they lose those four times, they could get one more short before a body that is more frankly allowed to take politics into consideration and within which Team Coleman has some friends. We’re talking the U.S. Senate.
So far, the 41 Senate Republicans have stuck together around the idea that they don’t have to seat Franken until he has a certificate of election. (Under Minnesota law — although Franken is challenging this — you don’t get a certificate of election until at least the state courts are done with the case.)
Suppose the new election argument loses at every level of the court. Suppose Franken is awarded the certificate. (We could pause for a moment to consider whether Gov. Pawlenty has any discretion at that point. He is supposed to prepare the certificate and sign it. Presumably, he would rather see another Republican in the Senate. But it seems unlikely that he would risk looking like a hyper-partisan by refusing to sign the certificate. Who knows?)
Now, under this scenario, Franken presents himself for seating. The Senate has given great weight to those certificates, but the Republicans are not legally bound to honor them. The Constitution gives the Senate almost complete authority over whom it seats and the courts have seldom interfered. If the 41 Republicans still want to keep the seat open and keep alive the chance of filling it with a member of their party, they could decide to filibuster anyway. If they decided to do so, they could claim that because of the not-terrible arguments in No. 2. above, they cannot be sure that Franken really won. They could ask for a Rules Committee investigation. They could demand that the disputed ballots or the key witnesses be brought to Washington for examination.
This seems far-fetched, and it is, but something like this happened in the most messed-up Senate election case ever. In the 1974 New Hampshire election (I’ve written about this before) Republican Louis Wyman led on election night by just 355 votes. After a recount, Democrat John Durkin led by 10 votes. After a second recount, Wyman led by TWO votes. The Senate decided to study the case itself. There was a significant Dem majority, and after the committee process, the majority wanted to seat Durkin. But the Repubs (with a few conservative Dem allies) mounted a successful filibuster. It lasted for months, Durkin and Wyman actually sitting in the back of the Senate chamber, monitoring the discussion of their case.
During JUNE and JULY, the Senate took a record six cloture votes but couldn’t break the filibuster. So, how did it finally get resolved:
New Hampshire held a re-do election. It wasn’t imposed by a judge, and although the U.S. Senate by that point favored the re-do, it lacked the authority to tell New Hampshire what to do. But, earlier in the process, the New Hampshire Legislature had enacted a law specifically stating that if the Senate declared the seat vacant, a new election would be held within 45 days. The Senate had been open to this idea for a while, but Durkin resisted, apparently believing that the big Dem majority gave him the advantage. (And he was appropriately mocked for fearing to go home and let the voters settle the matter.) Finally, the determination of the filibusterers apparently convinced Durkin that he would never get the seat without the special election. With his assent, the Senate voted 71-21 to declare the vacancy, which triggered the re-do election.
The governor (a Republican) appointed as a temporary senator until the election the Republican senator who had just retired setting off the Durkin–Wyman race.
Despite the fact that it is rooted in a real case from not-so-long-ago, this scenario has drifted deep into fantasy. And yet, the parties and players line up rather nicely across the two cases. The hardest part to figure is whether the Senate Repubs would be willing to risk the political heat they would take from all but the most partisan for refusing the seat a certified winner.
But as long as we’re here, a few other questions to ponder. If it looked like the Senate was going to tie up the matter indefinitely, would the Minnesota Legislature pass a law for a special election? Who would Gov. Pawlenty choose to serve as a temporary senator? I say he wouldn’t dare choose Coleman. Think senior statesman types. Make your guesses in the comment thread.
Would the election be a runoff between Coleman and Franken or would the Independence and minor parties be on the ballot. (I say yes, all the parties. In the New Hampshire case, there was a third-party candidate on the special election ballot.) If the Dems and Repubs had an opportunity to nominate whom they wanted (presumably on some abbreviated process), would they stick with Franken and Coleman? Hmmm?
OKy, a couple of last matters about which you might be wondering. Yes, there are already laws on the books that describe vacancies that might be created in public office and that set rules for a temporary appointment and a special election in case of a Senate vacancy. If there were a legal vacancy for a Senate seat, the existing law already calls for a special election, although not until November. And it’s not clear how that election would be triggered. The seat seems kinda vacant, even now, but the circumstances named in the law as creating vacancies don’t contemplate exactly this situation, although some come close.
If you’re wondering, John Durkin, the Democrat (and the one who held out the longest against the idea of a special election) won the re-do by a solid margin that surprised everyone. He served the balance of that one term and then was defeated for re-election.
(I thank Dr. Betty Koed of the Senate Historical Office for help in understanding the New Hampshire case.)