Seat Al Franken Already

By Scott Rafferty, AlterNet. Posted February 5, 2009.

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."

See more stories tagged with: democrats, republican, minnesota, coleman, franken, recount, absentee ballots

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

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