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Recount notebook: Musings on Franken-Coleman maneuvers, Supreme Court ‘leanings,’ and more

Norm Coleman, Al Franken
Photos by Bill Kelley and Terry Gydesen
Long-ago Election Night: Norm Coleman, Al Franken

In an effort to feed the habit of Recount Geeks — who must now become Election Contest Groupies in the Al Franken-Norm Coleman matchup — we’re emptying our notebooks and offering you some notes and quotes, dribs and drabs, dots and dashes …

Handicapping the Minnesota Supreme Court
Let’s say this election contest trial concludes sometime in late February. Let’s say there’s an appeal.

And let’s say it goes all the way to the seven-member Minnesota Supreme Court.

Which side can we expect the five remaining justices to be on?

Early in the recount, some Franken boosters rubbed their hands with joy when Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson joined the State Canvassing Board.

The view from Franken’s corner was that by removing conservatives Magnuson and Anderson from the Supreme Court roster, the remaining five justices included three “liberals” — Alan Page, Helen Meyer and Paul Anderson.

With only two “conservatives” remaining — Lorie Gildea and Christopher Dietzen — Franken would have a 3-2 edge.

Not true, says William Mitchell College of Law Prof. Peter Knapp, who is the state’s leading authority on the Minnesota Supreme Court. Knapp is such a geek that he keeps Supreme Court stats the way some wackos keep track of Nick Punto’s on-base percentage.

In Knapp’s analysis, it is true that since Dietzen joined the court last year, he and Gildea have “been quite consistent.” Indeed, the two of them have agreed in every case in which there’s been a dissent over the past year.

But, Knapp said, “As a practical matter, there really has not been a consistent block of voting on civil matters with respect to the other three justices. They just don’t line up consistently.”

For those of you scoring at home, in 2008, out of about 100 cases, there were only 19 with dissenting opinions. (The Supreme Court is very agreeable.) But in those cases in which there were dissenting views, Gildea and Dietzen were never on opposing sides of a case.

But, in those same 19 split decisions, Paul Anderson and Page were on different sides nearly 80 percent of the time, said Knapp.

“In civil matters, in this court, it just doesn’t line up left or right,” Knapp said, “in part because the questions they’re answering tend to be fairly technical.”

So, Frankenphiles, don’t be thinking a Franken appeal to the State Supreme Court is a slam dunk. — Jay Weiner

Partisanship watch continues to whiff
The state law on election contests empowers the chief justice to appoint a three-judge panel to hear such cases. No law required Minnesota’s Chief Justice Eric Magnuson to recuse himself from that task in the Coleman contest, as he did on Tuesday. But it was reasonable for him to do so, since he had been a member of the Canvassing Board, and the board’s rulings will be second-guessed during the contest.

It was only the latest in several examples of players in the recount taking steps to avoid an appearance of partisanship, the biggest of which may have been Secretary of State Mark Ritchie’s acceptance of two presumably Republican justices for the Canvassing Board. Magnuson nominated himself (and Republican appointee G. Barry Anderson) for that assignment but the law gives Ritchie power over those appointments.

Not only is Magnuson a recent Republican appointee to the court, but his recusal put Alan Page as the senior member of the court (first elected 1992), in charge of appointing the panel. I’m not sure what Page may have done earlier in his career (other than being black) to leave the world with the impression that he is a DFLer. Page doesn’t wear the partisanship of an original appointer because he was elected to a rare open seat on the court. I do know that he has been rumored as a possible DFL candidate for several major statewide offices and is believed to have DFL leanings. (Can’t blame him for rumors, but he was never rumored to be mulling a bid for office as a Republican.)

If the assumption is correct, it adds to the importance of Magnuson’s recusal, since it amounts to a transfer of that appointment power over the three-judge panel from a Republican to a Democrat. So far, the ability of judges and election officials to avoid blatant partisanship in the recount has been impressive. Certainly Page’s appointees will be closely scrutinized along those lines.

Professor and election law expert Edward Foley of Ohio State University has been writing about how well this step was handled in the famous recount of Minnesota’s 1962 Andersen-Rolvaag gubernatorial election, when the then-chief justice got the two contestants to agree in advance to the lineup of judges. That basically made it impossible for either side to argue that the panel had been stacked against them. A full-fledged MinnPost guest piece by Foley on how that was accomplished, and how it contributed to the final outcome, is here. — Eric Black

Norm and the national GOP
When Norm Coleman made his decision to contest the recount, what kind of national or local pressure did he get from the GOP faithful?

Did Coleman get pushed by the leaders in D.C. or the boosters locally to pursue the legal battle?

Wondering, we asked that of state GOP Chairman Ron Carey. He responded via a brief statement through a party spokeswoman, but we’ll take whatever we can get.

“This decision was Senator Coleman’s to make and we supported him fully in his decision.” Carey said, suggesting there wasn’t any pressure.

But another GOP party insider had this take: Once the Coleman/Franken seat was no longer the possible 60th Democratic seat in the Senate, the national GOP pols didn’t exert as much influence or express as much concern.

Meanwhile, this insider said, Coleman and his backers took at face value the Canvassing Board and Supreme Court’s rulings that his complaints would get a better airing in the election contest phase.

So, here we are.

But, clearly, Coleman wasn’t alone in deciding, not with about 150 chanting supporters at his announcement Tuesday. — Jay Weiner

Reid’s ‘friendly’ advice to Coleman
In his opening remarks on opening day of a new session, the Senate majority leader traditionally discusses any problems with the elections of members waiting to be sworn in. Democratic Leader Harry Reid followed that tradition Tuesday, discussing why neither Roland Burris of Illinois nor Al Franken would be seated that day.

Reid had hoped that Al Franken would be seated, provisionally, while awaiting court action in the recount. But Senate Republicans would not agree to seat Franken without a final certificate of election. So Reid announced in his opening remarks that “Democrats will not seek to seat Senator-elect Franken today.”

By referring to Norm Coleman as “former senator” and to Franken as “senator-elect,” Reid gave no credence to the idea that Coleman might win his court case. While acknowledging that Coleman is “entitled to the opportunity to proceed however he feels appropriate,” Reid stated flatly that “the people of Minnesota — they’ve chosen a new senator, Al Franken.”

It’s not clear how Reid plans to make that stick, if the court battle goes on for months.

Reid spent several minutes counseling Coleman to concede, reminding Coleman that he himself had once lost a Senate election by just 524 votes (this was in 1974, when Reid made his first Senate bid and lost to Republican Paul Laxalt) and that he had accepted the result of the recount without going to court. He added that he had also won an election by just 428 votes (this was 1998, when Reid barely survived a challenge from Republican John Ensign and Ensign had called on him to concede before the recount was finally done.)

Reid was speaking a few hours before Coleman announced that he would contest the recount. I can’t believe Reid’s appeal made much difference to Coleman, who had already made up his mind to go to court, but here’s what Reid said:

“I say to my friend Norm Coleman: Watch what I’ve said, and watch what has taken place in the past. The Senate race in Minnesota was very close — very, very close — one of the closest in history.  A bipartisan state Canvassing Board and Minnesota’s election officials have done an exemplary job of handling the recount. [Note that reference to the bipartisan make up of the board.] No allegations of partisanship or unfairness on either side, that I am aware of, and I’ve followed it every day for six weeks. [There certainly have been allegations of partisanship, mostly directed a Democrat Mark Ritchie, the secretary of state.]

“Even close elections though, have winners. I can testify to that. After all votes have been fairly counted Al Franken is certified the winner by the state Canvassing Board and he’s the Senator-elect from Minnesota. Democrats will not seek to seat Sen.-elect Franken today. We understand the sensitivity on both sides to an election this close.

“This is a difficult time for former Senator Coleman and his family. And I acknowledge that.

“He’s entitled to the opportunity to proceed however he feels appropriate, but for someone who has been in the trenches in a number of elections, graciously conceding like his friend John Ensign did, would be the right step.

“This can’t drag on forever, I understand that. I hope that former Senator Coleman and all of our Republican colleagues choose to respect the will of the people of Minnesota. They’ve chosen a new senator, Al Franken, and his term must begin and will begin soon…” — Eric Black

Football  fan Elias knows how to fill ‘timeouts’
Franken lawyer Marc Elias, who grew up in suburban New York City, is a rabid New York Giants fan who has retained his Giants’ season ticket even though he lives now in the Washington, D.C. area. Occasionally, during breaks in the tedious Canvassing Board hearings, Elias would seek out a sportswriter in the peanut gallery to chat about the Giants’ running game and the rising cost of Giants’ season tickets … — Jay Weiner

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Comments (10)

  1. Submitted by Brian Simon on 01/08/2009 - 12:13 pm.

    The analysis here seems a bit shallow and based too much on alleged partisanship of the judges and implication that party leanings would influence their decisions.

    The more interesting analysis would focus on which campaign’s legal arguments appeal more to a conservative or liberal ideology. Surely each campaign is structuring their arguments based not on ideology but on how to win or retain the most votes. But the judges presumably will decide the case on the merits – if, for instance, the Coleman campaign’s arguments call for a more (presumably) liberal view of which absentee ballots should be counted, will such arguments carry more weight with the ‘liberal’ judges?

    I’m assuming that the liberal argument regarding voters would be that vote counters should err on the side of including invalid votes, in order to better ensure the inclusion of all valid votes; while conservatives presumably argue the opposite: losing a few valid voters is acceptable as long as all invalid votes are excluded.

    The larger point: presuming the justices will decide the outcame based on party affiliation is pretty lowbrow journalism.

  2. Submitted by Jim Camery on 01/08/2009 - 03:09 pm.

    I will be surprised as can be if the panel goes anywhere beyond critiquing the process that the canvasssing board used to make decisions.

    Coleman will want otherwise, but there’s no way they’ll get down in the muck evaluating ovals and checkmarks. Coleman will try to impugn the policy and execution of the board, but the panel will approve the policy as being appropriate (would they want to say otherwise about their fellow judges’ decisions?), and stay as far away as possible from how policies were implemented.

    Anything approaching questions of if processes were faithfully and consistently executed means going through and counting those 2.3 million ballots again. No way would this quasi-appeals court want to get sucked into that.

  3. Submitted by Ray Lewis on 01/08/2009 - 10:25 pm.

    Given that your article is about “— we’re emptying our notebooks and offering you some notes and quotes, dribs and drabs, dots and dashes …”, the level of analysis is not a primary concern today. Professor Foley’s reading of Minnesota history and suggestions for the current application of lessons learned more than makes up for a slow news day.

    How can people contribute to fleshing out the best story going in any media? Where are the individual accounts of people’s participation and view of this historical event? You could then provide the “Web 2.0” take summarized for passive consumers of the news and history.

    I’d suggest the possible future topics:

    The 3 judge panel hearing the election contest and how they are chosen;

    Perceptions of voters when they voted on Nov. 4th and now;

    Role of precinct level election judges;

    Role of independent groups such as Citizens for Election Integrity MN;

    Role of political parties, including local, state and national levels, regarding funding, volunteerism for the political campaign, recount and election contest;

    Role of various types of media (radio, TV, newspaper and internet) and potential biases, such as depending on headlines to grab eyeballs of targeted audiences, campaign advertising revenue and profits from 2008, previous endorsements, resources available for in-depth analysis and specialized understanding of law, the election process and terminology, and their stated mission and purpose. A good example might be a comparison of the Wall Street Journal opinions vs Each may have a different viewpoint, but which has more influence on public opinion about the fairness and accuracy of this Senatorial election?

    What lessons can be learned from this vote, recount and election challenge and how can we improve the voting process for future generations? How will the 2009 Minnesota Legislative session respond to ideas for improving the process?

    I really like your comment posting policy compared to other media covering this story.

  4. Submitted by Kurt delNorte on 01/09/2009 - 07:52 am.

    The Democrats are consistently using the same techniques to try and steal (and have been more successful of late) elections in key contests and states. Basically, they push through large numbers of registrations that are not looked at closely by certain state systems, Minnesota being one of those.

    Then, if its close on election day, they go through the process of a recount, or ‘finding’ votes in strange places, trunks of cars, in a box that was ‘mistakenly’ stored in an closet and forgot to be opened. During the recount they often are able to maneuver situations that allow changes to counts on ballots that either make them questionable (primarily Republican) or now appear to be Democrat votes.

    George Soros has paid millions of dollars to get Left-leaning Secretaries of State elected (yes Minnesota is one) so that any controversy or calls made by that person on an election, will, at the end of the day, be made in the Left’s favour.

    Recent results? Washington has a Democrat for governor, although it took two recounts and a large number of ‘found’ votes to put her over the top. In Minnesota, there are more votes counted for some Democrat-leaning counties than there were people who voted there.

    Corruption, we are Minnesota.

  5. Anonymous Submitted by Anonymous on 01/09/2009 - 10:09 am.

    Could you please provide one measley shred of documentation for your accusations? Coleman’s lawyer retracted the car trunk lie the same exact day he put it out. Hannity and Limbaugh kept putting out these lies even after there was no source.
    Do you have any data at all to support what you are saying, other than Hannity and Limbaugh?

  6. Submitted by Mark Gisleson on 01/09/2009 - 02:24 pm.

    I just hope the FEC audits these new recount donations very closely. Given what we now know about Norm’s house being “underwater,” should we be concerned that Norm is keeping this process going solely so he can keep legally raising money?

    He’s no longer on the Senate payroll. His wife has no visible means of support other than her extraordinarily dubious job with Hays which by all rights should be investigated by the Senate.

    How exactly is Norm getting by right now? Who’s making his mortgage payments for him?

    Norm needs income, and he needs it fast. His past history shows that he will reach out to his friends, but now that he’s not a U.S. Senator, does Norm still have any friends?

  7. Submitted by Jim Camery on 01/09/2009 - 03:21 pm.

    Glenn Thrush on Politico has the details on his mortgage problems (mortgages are registered with the County and are public knowledge).

    This recount stuff just makes him more toxic and lessens his chance for any kind of private job requiring trading on his name (not that there’s thousands or private jobs around right now). Strategically, he’d be much better playing the “I’m a statesman” card and bowing out. And he won’t win anyway, absent and smoking gun of epic proportions.

  8. Submitted by Joseph Fleischman on 01/09/2009 - 10:03 pm.

    Would Eric and Jay speculate on how Mary Kiffmeyer might have handled the recount?

  9. Anonymous Submitted by Anonymous on 01/10/2009 - 05:14 pm.

    I have been following very closely since the inception of the recount process used in the great state of Minnesota. I am from a southern state which has no such recount process. I honestly believe that Minnesota has the best election system of any state. It is virtually impossible for fraud to be committed in any form. As I watched the incredible process of recounting almost 3 million ballots, I was totally amazed how little chance there was for a miscount with both campaigns verifying each and every decision made.
    It is shameful that the national media has not given the credit due for a recount that for the first time in history was accurate. It is also shameful that the loser would pooh pooh the efforts of the whole state and throw them in the trash can. It looks to me like the citizens would demand a senator be seated now for representing Minnesota at this critical time.

  10. Submitted by Jeff Kline on 01/11/2009 - 07:20 am.

    It is a very sad day when your vote does not really count for much of anything anymore. Fact is that depending on who is being “elected”, their success largely relies upon who else from their “party” is in a position of power to help move them into position despite what the voters want. This so obviously also includes “recounts” as can be attested to by this story. It’s really about posturing by placing strategic people in strategic places to solidify the party. It’s all about doing absolutely everything and anything needed to ensure that you can get to that 60+ vote filibuster proof majority so you can slap the other party back down into submission; and do what ever the hell you want to, because nobody can stop you. I’m personally very disappointed in Minnesota politics. This sort of thing is not supposed to be happening.

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