Franken vs. Coleman: Don’t Count Either of Them Out

The Election That Keeps on Giving. Seven weeks after the election, the Minnesota canvassing board is busily trying to decide the result of the U.S. Senate race between Democrat Al Franken, ex-comedian/satirist and Republican Norm Coleman, incumbent wingnut self-parody. During this long process both candidates have at times held the lead, but lately Al Franken appears to be up by about 20-50 votes out of 1.7 Million. On Tuesday when the board finalizes its count prior to counting absentee ballots, most expect Franken to be declared the winner by approximately 50 votes.

The primary and crucial issue now being raucously debated is the number of absentee ballots not included in the November election count that will next be examined and counted by the canvassing board. How many will be ultimately counted? The two campaigns appeared to agree to 1,350 for a while, but lately both have asked that others be included as well; Coleman asking for more than 700, and Franken for an additional 85. However this is decided, the state canvassing board and Republican Governor Tim Pawlenty will likely – although not certainly – certify a winner by January 6th, the swearing-in day for the 111th Congress.

But what happens if the Minnesota recount is photo-finish close? Under Article 1, Section 5. Clause 1 of the U.S. Constitution, “Each House shall be the

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Judge of the Elections, Returns and Qualifications of its own Members . . .” It doesn’t get simpler than that, nor more politically complex or rife with the chance for extreme partisanship. In the Franken-Coleman case, the losing side could pursue a court challenge, but courts, Bush v. Gore aside, do not like to settle elections. And the right of the House and Senate to resolve its own contested election cases is supreme. Justice Antonin Scalia, while a court of appeals judge, wrote in a 1986 contested House election case:

It is difficult to imagine a clearer case of “textually demonstrable constitutional commitment” of an issue to another branch of government to the exclusion of the courts… than the language of Article I, section 5, clause 1.

Additionally,

[W]e may observe that it makes eminent practical sense. The pressing legislative demands of contemporary government have if anything increased the need for quick, decisive resolution of election controversies. Adding a layer of judicial review, which would undoubtedly be resorted to on a regular basis, would frustrate this end.

Going Nuclear. There is a “nuclear option” available. And Article 1, Section 5. Clause 1 is it. On January 6th, assuming a win by Franken in a very close vote count, the Senate can seat him provisionally upon the privileged motion of a single Senator, a motion that is not subject to filibuster. Then, for further investigation the matter would be referred to the committee with jurisdiction over contested elections which, according to Senate Rule 25.1.n, is the Senate Committee on Rules and Administration,* chaired by Senator Charles Schumer (D-NY), with Senator Robert Bennett (R-UT) the ranking Minority member. The Senate could do the same if it is Coleman who arrives with a certificate of election from Minnesota. In addition, the Senate could decide to seat either Franken or Coleman “without prejudice,” meaning that either could be removed based upon the findings of a Senate investigation and vote. Also, the seat could be declared vacant during Senate considerations.

Into the Way Back Machine. Since the First Congress in 1789 there have been Studies in American Political Development,132 contested Senate elections, most of them during the Civil War-Reconstruction period, and only three since 1974. Allegations of fraud, corruption, bribery, and non-criminal irregularities make up about 45% of these. Interestingly, in view of Illinois Governor Blagojevich’s situation, 20% were contested based upon an alleged illegal appointment by a governor. The person contesting the election has won only two cases, and the seat has been declared “vacant” on 37 occasions. For a contestant, it’s a steep uphill fight.

Recently, the 1974 New Hampshire Senate election, known as the closest election in history (2 votes), between Republican Louis Wyman and Democrat John Durkin, who contested the election, caused Rules committee staff to literally recount 3,500 disputed ballots. Ultimately, the full Democratic-controlled Senate could not decide on 35 points sent to the floor, and after six cloture votes over six weeks of debate the Democrats could not break filibusters. In the end, in late July 1975, the Senate declared the seat vacant, and the governor appointed an interim Senator pending a new election which the two contestants had agreed upon. In September, Durkin won the election by a 27,000 vote margin, much, one can confidently speculate, to the Senate’s relief.

Most recently, in 1996, Democratic Senator Mary Landrieu’s election from Louisiana versus Republican State Representative Woody Jenkins was contested by Jenkins, who alleged massive voter fraud. Landrieu was allowed to take her seat “without prejudice” while the Rules Committee considered Jenkins’ allegations. In a tables turned irony, within the first month of the investigation it was discovered that a private detective hired by Jenkins had coached and paid numerous witnesses to make false claims. Democrats walked out of the proceedings, but the now Democrat-free committee, however, took 10 months before fully certifying Landrieu.

Once More Unto the Breach, Dear Friends? There’s quite a bit a stake in the Franken-Coleman dust-up. With a Franken win Democrats would have 59 seats, although with Blue Dogs like Evan Bayh, real party unity, sadly, is unlikely. For Republicans, holding onto the Minnesota seat is important both for the vote it brings the caucus, and for strengthening the appearance that the GOP is not dead in the water, but still able to tread water. And, let’s face it, with Democrats having shown they are often lacking in legislative cahones even with a majority, that Coleman vote – and voice – may win them a few important battles.

The question is not decided either as to whether the Senate would intervene. Mitch McConnell (R-KY), the Republican Minority Leader, spoke out in November at a time when Coleman was ahead in the vote count, “The recount process in Minnesota is being handled by Minnesotans, not D.C. politicians,” McConnell said. “And while neither side will agree with every twist and turn or every decision, I would hope that Washington partisans would refrain from injecting themselves into what is, by design, a non-partisan process.” Around the same time, Cullen Sheehan, Coleman’s campaign manager, said if Franken loses the election after the recount is complete he should not challenge the results in court and he should promise Minnesotans “that he will not allow this election to be overturned by the leadership of the Democratic Senate.” I have not heard anything further from the GOP on this stance since Franken jumped into the lead . . .

While, above, I’m obviously taking a swing at the GOP, it’s clear that Franken and his Frankenaides would now parrot the same sentiments. Clearly, this morality play swings like a pendulum with the reported vote counts. As for Franken, about a month ago, on Joe Scarborough’s show, election pollster Chuck Todd reported that senior Senators were “concerned” about the election of Franken of the “Hollywood left” and “the perception that Franken would [lead] . . . the Sean Penn’s of the world [to] think they could run for office . . . Alec Baldwin . . .” Scarborough laughed and laughed. Of course – and this is an obvious aside to the topic here – Joe and Chuck conveniently forgot to remember Hollywoodies like Ronald Reagan, Arnold Schwarzenegger, Sonny Bono, Shirley Temple Black, Clint Eastwood . . . they reported no concern among Senators about the Hollywood “right.”

The End Game. In any event, Minnesota’s other Democratic Senator, Amy Klobuchar, recently asserted, “If the Canvassing Board declares a winner, that should be our senator . . . [the Senate] could seat a senator pending the litigation,” as it had done with Landrieu in 1996. Also, though unlikely, Minnesota’s Republican Governor Tom Pawlenty might insist that he has the authority to appoint an interim Senator, pending the Franken-Coleman contest. Most agree, however, that the Senate would first have to declare the seat “vacant.”

The partisan-shy Senate Majority Leader, Harry Reid (D-NV), who has so often seemed noncommittal about a Democratic majority in the Senate, is in form regarding the Franken-Coleman contest. Here’s his most recent statement to TPM, “We’re keeping abreast of the situation and will make a decision with regard to Senate action at the appropriate point in the process.” That makes mayonnaise look more and more interesting.

Should Franken show up on January 6th with Coleman contesting the election some fear that, in a characteristically shoot-the-party-in-the-foot move in order to appear bipartisan, Reid will declare the seat vacant pending a Senate investigation. This would permit Republican Governor Pawlenty to appoint none other than Norm Not-Dead-Yet Coleman, or some other wingnut, to the seat during the investigation’s tenure. I wouldn’t put it past Reid who knows that if he seats Franken he’ll face a fully steamed and filibuster-savvy GOP minority just itching to draw first blood in the 111th Congress. Reid too often doesn’t have the confidence or the stomach for the fight, and that’s why I believe he might just open the door for Pawlenty and Coleman. We’ll see. Perhaps Reid and the Senate Dems have grown some.

I Hate Predictions, So Here’s a Few. Yes, I hate predictions, at least mine, because I’m so often wrong and should know better. But, once more unto the breach, I think that, after the absentee ballots are counted, Franken will win, and with a couple of hundred votes to spare. That’s still a razor thin triumph, but I’m really going out on a limb here and also predicting that Reid will seat him, despite my pessimism above. (My New Year’s resolution is “more optimism,” and I’m starting early.) I also believe that Coleman may simply retire and not contest it. After all, he has other problems to face that involve possible federal indictments, and I don’t think he can contest those in the Senate, at least. And lastly, with optimism, I predict I’ll regret these predictions . . .

* Note that as of the date of this entry this site is not updated with membership for the 111th Congress.