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Coleman-Franken recount: Musings on the lawyering of an election that doesn’t end

Marc Elias
MinnPost photo by Jay Weiner
Marc Elias, lawyer for Al Franken

Some of my best friends are lawyers.

I work out at a gym with a lawyer. My book club is filled with lawyers. One of my favorite people in the world was my very own lawyer many years ago when I was in a bind.

For gosh’ sakes, I’m married to a law professor. At her job, she molds fresh-faced, wing-tipped lawyers.

Lawyers are good. I’d let them live.

But I’ve got to tell you, democracy should not be hijacked by lawyers. Democracy should not be parsed or tweaked by lawyers. A U.S. Senate election that is lawyered to conclusion and buffeted by “gotcha” technicalities is not an election that gives me comfort.

That’s how I’m feeling this week about the Al Franken-Norm Coleman post-campaign, post-election, post-recount, pre-trial phase that we’re in.

Slow learner, I should maybe have come to this conclusion earlier.

But go here and tell me if I’m wrong. Or here.

Check out all the documents generated by lawyers. So far.

Recount producing negative image of lawyers
When I first started following this litigious festival of rhetoric two months ago, I told my lawyer-spouse that I thought the recount would give a bad name to lawyers.

The harsh, partisan yakking from both sides was deafening.

Vulnerability is not an attribute of lawyers fighting tooth and nail for candidates who fought nail and tooth. I learned that everyone was always right. It’s only the other guy who is wrong.

The lawyers are, generally speaking, all smart, sometimes witty, occasionally charming. And, as mentioned in earlier dispatches, they are remarkably male. Testosterone is not in short supply as the contest trial nears.

Then, for a while, I grew immune to all the chatter. It became entertaining. All the jabber, all the briefings, all the conference calls began to melt into the same generic assertions.

Of course, we journalists eat it up like Snickers on Halloween. We’re so bad.

Then, the State Canvassing Board process got under way — it seems like forever ago — and it felt as if democracy was at work. In a boring way, it was a breath of fresh air. The lawyers were there, but the board seemed to flatten out the parsing. Besides, it wasn’t totally scripted.

It felt as if the election were back on democracy’s track and not pulled here and there by one side or another.

The conclusion of the recount gave me hope because it was a moment of transparent decision. I watched as Secretary of State Mark Ritchie and four judges — yep, lawyers — diligently tried their best to be fair.

(News flash: A woman was involved, Ramsey County Chief Judge Kathleen Gearin.)

With the whole world watching,  Franken won the election recount by 225 votes. Out of nearly 3 million. A win, but on the last shot, at the buzzer, from way beyond midcourt and with the refs checking out the video to make sure the ball left the shooter’s hand in time. Just barely, the replay showed.

Because we are a nation of laws and not men, it’s inevitable that lawyers will dominate the fray. Indeed, such a close election requires a recount, and Coleman, the apparent loser, has his right to his day in court.

But don’t lawyers ever step outside the law and the battle to take into account the sensibilities of Minnesotans?

Or the attention span of most of us?

Reality check: Recount fanatics a small minority
There is a hard core of recount/contest fanatics. God bless them. They seem to live in a bubble and never have to shovel or drive their kids to school. But I’m thinking that most Minnesotans these days are worrying more about the strength of their parkas and the security of their jobs than the most recent filings in the state Supreme Court.

The two disputes du jour focus on: (a) whether Franken should get his election certificate now or wait until this entire process plays out; and (b) just when this whole thing can come to an end. Coleman’s side suggested Wednesday it should take a longer time than I anticipated.

The legalities are up to you to decide. See “Petition of Al Franken,” pretty high up on the Supreme Court’s website.

And see the Supreme Court’s order Wednesday telling Franken to cool his jets.

Fritz Knaak, lawyer for Norm Coleman
MinnPost photo by Jay Weiner
Fritz Knaak, lawyer for Norm Coleman

For the Coleman suggested schedule, with some portions of the trial beginning in late February, go here and see “Contestants’ Proposed Schedule.”

Both have had my jaw dropping this week.

Yes, we need two senators. Yes, the U.S. Constitution says so. And yes, depending on which news outlet you read at any moment, it looks as if even Republican members of the U.S. Senate are resigned to Franken’s victory.

But it’s been Marc Elias, the Franken legal chief, who has repeatedly said, “Let’s take this one step at a time.”

So why is Franken now pushing to get his election certificate, even before the full trial, which could vindicate his victory, has begun?

Why is he attempting to jump ahead in the process because of some technical “tension” in Minnesota law that needs to be “harmonized,” as his lawyer puts it?

Well, of course, there’s important work to be done in Washington, his supporters say.

“All we are seeking,” Marc Elias said the other day, “is something that all Minnesotans ought to insist on, is that they have full representation in the United States Senate during this time of great legislative activity in Washington, D.C.”

Minnesotans didn’t really make their will known in Senate race
But here’s my take: Minnesotans didn’t insist on anything about this Senate race last November.

If we desperately wanted a second senator on Jan. 6, we would have more clearly made up our minds. If Franken wanted to be sworn in on time, he might have persuaded more than 42 percent of us to vote for him.

I agree we need two senators, and I might even agree there’s a very good bet Franken will win the recount. And I know all of Washington is watching this and, even a little bit, pulling some strings.

But why, as one reporter asked Elias the other day, get greedy?

Elias disagreed with the premise, but, sorry, that’s the way it looks to an average schmo. Alas, the Supreme Court told Elias, Franken et al. Wednesday that, at the earliest, Franken will get a certificate on Feb. 5. There will be a full hearing on this. Sounds reasonable. Franken will have to wait.

(By the way, had Coleman won the recount by 225, you can bet your three-piece-suit he’d be seeking his election certificate before Franken’s contest had been heard. And I’d say: Hold on, Norm.)

Now, on the other hand, what was filed Wednesday by the Coleman side seems to be a non-starter. While Coleman’s lawyer, Fritz Knaak, called it an “aggressive” schedule, it’s hard to know how a schedule that includes five phases, including one that might not start until Feb. 23, is aggressive for a campaign that’s been going on for two years. Also, the Coleman side wants to, virtually, redo the entire recount.

I can’t see the three judges appointed allowing that.

This trial can’t — and shouldn’t — go into April. If it does, then Minnesotans will truly be done a disservice, and I might even begin agreeing with Elias.

Here’s my issue: Why don’t both candidates emerge from their hibernation, talk to one another and tell their lawyers firmly, “Start the trial Jan. 26. Let’s agree to end it within two weeks. Let’s wait for the three judges to rule. Let’s let the system work as best it can.”

I may be naïve, but not so naïve to pull a Rodney King and wonder why they can’t all get along. Still, come on guys. Let’s get ‘er done.

With all the good lawyering, it might be easy (and fun) to win the war.

But how do you win the peace? What’s on the other side of all this, this … noise. So far, I’m not real confident that the lawyers are good at peace.

Win the peace? How does the winner of this free-for-all take his seat — tomorrow or on April 1 — and do it with a sense that his victory is legitimate? How does the winner convince the 58 percent of Minnesotans who voted for someone else that he’s working for them?

“That’s going to be up to that individual, I’m thinking it’s going to be Norm,” Knaak told me Wednesday.

But Knaak acknowledged that the problem of a negative campaign is that it “takes a lo-o-ong time some times to get over that. That will be the challenge of the United States senator.”

So, let’s get to the trial. Let’s let three impartial judges kick it around. Let’s win with humility. Let’s lose with grace.

And let the lawyers, God love ’em, move on to their next nasty fight.

Jay Weiner can be reached at jweiner [at] minnpost [dot] com.

Comments (12)

  1. Submitted by Stephen Lehman on 01/15/2009 - 12:47 pm.

    This expresses my take on the situation better than I could do myself. An excellent commentary, Jay–right on the money in every regard. Both candidates and all the lawyers should read this and take it to heart before they say or write another word.

  2. Submitted by Spadafora Spadafora on 01/15/2009 - 01:39 pm.

    Jay wrote: “So, let’s get to the trial. Let’s let three impartial judges kick it around. Let’s win with humility. Let’s lose with grace.”

    Three impartial judges should make the decision that serves our democracy best… have a runoff election.

  3. Submitted by Jo Angela Maniaci, CMP on 01/15/2009 - 01:43 pm.

    Amen to this – and twice on Sunday! Thanks, Jay, for a great piece.

    I agree with Mr. Lehman – attorneys for both sides should read this and take it to heart.

  4. Submitted by Justin Templin on 01/15/2009 - 01:51 pm.

    I agree whole-heartedly with most of this, and that’s coming from a lawyer. This, however, is non-sense: “If we desperately wanted a second senator on Jan. 6, we would have more clearly made up our minds.”

    Most of us–almost all of us, I’d wager–did clearly make up our minds and voted for a candidate. The fact that Minnesotans split almost evenly on who they believed would make a better Senator (and who they wanted taking the oath on Jan. 6) doesn’t change that fact or indicate that we don’t care whether we have one Senator doing the constituent service work of two or voting on important questions of policy.

    Count the votes in accordance with the law and seat whoever won. Do it as quickly as possible so the people of Minnesota are represented to the full extent possible. And don’t try to tell me it is more complicated than that.

  5. Submitted by jim hughes on 01/15/2009 - 02:21 pm.

    Isn’t it mainly up to the judges to move this thing along and restrain the lawyers?

    Fortunately we don’t have Lance Ito on the Minnesota Supreme Court.

  6. Submitted by Jeff Kline on 01/15/2009 - 03:12 pm.

    Josh; Since you indicate that you are a lawyer, then would you not agree that the episodes of earlier where strange boxes of ballots appeared in peoples trunks and the like, represents a “loss of custody”, and hence these ballots should not be counted but in fact discarded?? This really speaks volumes of voter tampering to me.

  7. Submitted by RuthAlice Anderson on 01/15/2009 - 03:17 pm.

    The problem is that losing with grace is not something Republicans value. That’s why we get GOP candidates like Denny Smith who was resoundingly defeated and still took two weeks to concede. That machismo, weenie-wagging bullying culture that the GOP values so much does not lend itself to graceful anything, let along graceful concessions.

  8. Submitted by Dan Hintz on 01/15/2009 - 03:46 pm.

    “Josh; Since you indicate that you are a lawyer, then would you not agree that the episodes of earlier where strange boxes of ballots appeared in peoples trunks and the like, represents a “loss of custody”, and hence these ballots should not be counted but in fact discarded?? This really speaks volumes of voter tampering to me.”

    I expect that as a lawyer Josh (or Justin, since that is his name) took the time to actually learn the facts before posting a comment here. I expect that Josh/Justin understands that, in fact, there were not any strange boxes of ballots in people’s trunks and that even the Coleman campaign has conceded that the story was completely bogus.

  9. Submitted by Bernice Vetsch on 01/15/2009 - 05:56 pm.

    Jeff Kline: The rumor about ballots being left in a car trunk was disproved in November.

  10. Submitted by Hiram Foster on 01/16/2009 - 06:08 am.

    I don’t think passion can be measured by overall vote totals. Certainly the intensity of the recount process involving as it does huge numbers of Minnesotans across the state is solid evidence that a great many people care very deeply about the outcome of this election.

  11. Submitted by Hiram Foster on 01/16/2009 - 06:09 am.

    “Three impartial judges should make the decision that serves our democracy best… have a runoff election.”

    Having a run off lesson would invalidate the millions of votes Minnesotans cast in November. We had an election. Now is the time for counting the votes.

  12. Submitted by Hiram Foster on 01/16/2009 - 06:18 am.

    By the way, my attention span is doing just fine. I think at some point we need a US senator, it would be simply unacceptable to go six years without one. It will be important for the judges considering the election contest to proceed with all deliberate speed and not allow the attorneys to engage in endless wrangling, and if they don’t do that, the credibility of the legal process will be undermined. But for the time being, I am willing to wait for courts to perform the tasks that have been assigned to them under law.

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