News & Politics

Seat Al Franken Already

Republicans will pay a price for stalling Senator-elect Franken.

The jig has been up for Republican former Sen. Norm Coleman since election night, when the results showed him just 326 votes ahead (out of more than 292,000 ballots). Minnesota is a paper-trail state, and its law explicitly protects voter intent with prolonged procedures. As predicted on AlterNet, Coleman's margin was simply not big enough to protect him from the required manual recount.

Minnesota's modern optical scan machines are astonishingly accurate when the voter completely fills the oval with a black pen. But 7 out of 7 peer-reviewed academic studies confirm that Democrats just do not follow this instruction as well as Republicans. Since the recount tallies any ballot with clear evidence of voter intent, Democratic candidate Al Franken's march to victory was steady -- just as predicted here. The State Canvassing Board, including two Supreme Court justices (and only 1 out of 5 members a Democrat), certified Franken's margin at 225 votes after a hand recount.

Minnesota's modern optical scanners had close to zero counting errors where the voter filled out the oval, as all obedient persons well-trained in taking SATs reliably did. But 6 out of every 10,000 voters didn't follow directions, didn't completely fill in an oval, or made other markings that the machine couldn't be expected to interpret. That's 1,672 ballots that were inspected by hand and interpreted by the Canvassing Board, many of them by less-educated or simply rebellious voters.

History shows Democratic candidates start with a baseline advantage of 60 percent among these votes. Consistent with his slight edge, Franken got 62 percent, for a net gain of 440 votes, switching the outcome.

He also netted about 62 percent of late-counted absentee ballots (previously rejected on election day without cause). Franken had a strong ground game targeting absentees, and this gain is consistent with his overall edge in absentee voters. The absentees add 176 votes to his margin.

Minnesota has a strong culture of counting every valid vote. So yesterday's Supreme Court decision, which gave Coleman the right to argue about 4,797 more absentee ballots, was no surprise. Many of these ballots have already been rejected twice for cause; the counties' reconsideration changed only 1 out of 150. To win the election, Coleman would have to quintuple that reversal rate and then limit Franken to four votes from almost 4,800 ballots.

It is far more likely that counted ballots, if any, will follow the pattern of the prior rejected absentees (62 percent Franken) pushing his margin even higher.

Coleman knows that he has lost and has even taken a new job. But the Republican caucus wants to delay the inevitable. There will be a filibuster if the Senate seats Franken before Coleman concedes, warns Republican Senatorial Campaign Committee Chairman John Cornyn of Texas.

"It's well-established in the Senate," pipes in Minority Leader Mitch McConnell of Kentucky. "The way you get sworn in and the way you get seated is to show up with an election certificate."

The Senate rejected that argument in 1896, when the governor of Delaware refused to issue an election certificate to Republican Peter DuPont, later a two-term senator. While a certificate is "prima facie evidence" of a valid election, the Senate can seat members without certificates. Just three weeks ago, Sen. Roland Burris, D-Ill., took his seat without an election certificate.

The Senate can also count the election results for itself, before, during, or after a state recount, making the state certificate irrelevant. It did its own tally of Democrat Vance Hartke's close race in Indiana in 1972. Or it can provisionally seat a senator-elect (Mary Landrieu, D-La.) while it investigates charges of double voting, as it did in 1997. Landrieu was allowed to vote (and the charges were quickly discredited), but the proceeding kept her in some jeopardy for 10 months.

These powers to act without regard to state certificates and judgments leap out of Article I of the United States Constitution: "each House shall be the judge of the election and returns … of its own members." The Supreme Court has affirmed that the Senate is "free to accept or reject the apparent winner in either [original] count [or recount] and, if it chooses, to conduct its own recount."

On Feb. 5, 2009, Franken will go to court to ask for his election certificate. Since the state constitution allows state executive officers to hold over until their successor is qualified, Minnesota Code 204C.40 withholds incoming officials' election certificates until after "final [judicial] determination" of any election challenge. So Elmer Anderson was Minnesota's governor for 135 extra days in 1963 while the state supreme court determined that he really did lose re-election.

The next subdivision exempts state legislators, giving them a certificate right after the Canvassing Board certifies the recount results (on the condition that the court can later revoke it). This is because legislators whose terms have expired cannot carry over into the next session without being re-elected.

The law was amended in 1986 to provide for the mechanics of certifying federal elections, but the legislature apparently forgot to include U.S. senators and representatives in the legislative exemption from having their certificates withheld. Mistake or not, the statute is pretty clear, so it will be a surprise if the court issues the certificate before its final judgment.

Republicans have one precedent on their side -- the partisan donnybrook of 1974, for which voters in New Hampshire, and the rest of the country, properly punished them. In an open Senate race, Republican Louis Wyman prevailed over Democrat John Durkin by 335 votes on election day, but Durkin won the recount by 10 votes, and got his election certificate from the governor.

At the time, there were 61 Democratic senators. But by getting one Democrat to defect on the Rules Committee (Alabama's James Allen) and three more (all Southerners) to oppose a record-breaking series of six cloture votes on the floor, the Republicans delayed the election dispute indefinitely. After 18 months in waiting, Durkin called for a redo, which he won handily. Majority Leader Mike Mansfield successfully invoked cloture to pass landmark labor, civil rights and antitrust legislation.

In 1976, the nation returned 62 Democratic senators and a Democratic president, leading to one of the most prolific Congresses ever. The election was the best Democratic performance since the first Franklin D. Roosevelt midterm, when obstructionist tactics led the nation to remove all but 26 Republican senators and 89 Republican House members. Again, it was the 74th Congress, Roosevelt's second, that passed the enduring legacies of the New Deal -- WPA, Social Security and the Wagner Act.

The Senate has the power to seat Franken, but can the majority exercise it? Both sides know how critical a 60th Democrat would be in cloture votes. Today, the Democrats would have to lose a net of three votes to hamstring the Rules Committee. But the full chamber also has to approve seating Franken. Here, Cornyn's threat of filibuster is even more credible than in 1974, especially with a close vote looming on the president's stimulus package.

In the last Congress, Republican filibusters required 112 votes on cloture -- almost twice as many as any prior year. (From the beginning of the republic until the Nixon administration, there had been only 49 cloture votes, many involving civil rights filibusters.) For cloture motions, an empty seat is as good as a "no" vote.

Democrats may choose to let Coleman and the Republican leadership hang themselves on the public gallows of delay and obstructionism. Sen. Harry Reid, D-Nev., has already filed three cloture motions in the first month of this Congress and may want to preserve his perfect record while the president marshals public opinion for a vote on the stimulus package.

Minnesota's Gov. Tim Pawlenty cannot appoint a temporary Republican senator, because the seat is not vacant until the Senate declares it so. But Franken's stature continues to grow in his own state, and pressure mounts for the concession that even Cornyn expects Coleman to give.

Eventually, the Senate could require the Durkin-style compromise of a new election, but even that could require 60 votes. So far, the Republicans have placed their power to filibuster above the constitutional right of the people of Minnesota to have two senators.

Scott Rafferty is a Washington lawyer who has specialized in election law for many political campaigns.
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