Coleman Going For Do-Over? Spokesman Declares Election "Fatally-Flawed"
Today's developments in the Minnesota election trial make even clearer the extent to which the Coleman team are casting doubt on the whole election result -- indeed, they're using the sort of language that could lead one to believe they'll try for a do-over.
At Coleman lawyer/spokesman Ben Ginsberg's post-court press conference today (c/o The Uptake), unveiled this new line: "You saw today in the testimony of Scott and Carver counties, why Al Franken's current lead -- and I use that term euphemistically -- is based on illegal votes."
Ginsberg also said that the variation across the state in how absentee ballots were screened for acceptance or rejection made this "a fatally-flawed election."
The Coleman legal team used this afternoon's examination of two county election managers, Kendra Olson of Carver County and Mary Kay Kes of Scott County, to explore their this-whole-election-is-a-disaster gambit again. Olson testified that she tried to be forgiving with some of the rules for accepting or rejecting absentee ballots -- but not all.
Meanwhile, Scott County elections manager Mary Kay Kes said her county didn't even check on a particular voter error that led Olson to keep out 181 ballots -- what the Coleman camp claims is an inconsistency in treating ballots that rises to being a Constitutional violation.
Thus, Ginsberg said, there are votes already in the system that under the court's recent ruling -- which forbade Coleman from asking for some ballots to be counted -- are to be considered invalidly cast.
So the Coleman camp appears to be setting up a choice for this court or any future appeals: Either count all these rejected ballots, under Coleman's novel Equal Protection claim, or we'll insist that this whole election was illegal and demand a mulligan.
Come to think of it, they could still claim that the election was illegal if those ballots are all counted, and Norm is behind.
(By the way, here's a fun fact: Carver County, which has supposedly given Al Franken all these illegal votes, actually voted for Norm Coleman by 55%-29%, and Scott went for Coleman by 51%-31%. Even taking into account Franken's statewide lead in absentee ballots, Coleman could have won them here.)
Josh
Matt
Eric
Brian
Who has the authority to shut all this down in one stroke? This is flat out stupid.
February 17, 2009 7:03 PM | Reply | Permalink
It might take getting Norman on a small, private plane.
February 17, 2009 7:08 PM | Reply | Permalink
A small private plane to his indictment in TX come the beginning of April.
February 17, 2009 7:15 PM | Reply | Permalink
Who said Black Sights have no use in a free society
February 17, 2009 10:55 PM | Reply | Permalink
heh heh, black 'sites'. You, for a couple seconds, threw my brain into utter confusion.
February 18, 2009 11:49 AM | Reply | Permalink
The United States Senate has that authority under Article I, Section 5 of the Constitution. Each house of Congress shall be the judge of the returns, elections, and qualifications of its members.
That is a nice specimen of unambiguous original intent spelled out by the Framers in plain English.
Please look it up. And nothing in the 17th Amendment contradicts it.
February 17, 2009 10:08 PM | Reply | Permalink
I don't think that's right. I believe the Senate has the right to scrutinize the qualifications and credentials of whoever the states send up, but I don't believe it has the right to say to a state: "Hey. You're done. And So-and-So won." That's a state issue.
February 18, 2009 1:13 AM | Reply | Permalink
The post above was quoting directly from the Constitution.
February 18, 2009 8:12 AM | Reply | Permalink
Only a repug would argue against the Constitution as being unconstitutional.
February 18, 2009 8:47 AM | Reply | Permalink
I'm not disputing the language quoted. I'm disagreeing with your interpretation of what the Senate can do under that clause. I'm saying what the Senate can do is much more limited and ministerial than your interpretation -- and limited to just about ZIP with regard to Coleman's contest of the election results.
What's unusual in this case is that normally someone in Coleman's position has an incentive to concede defeat -- i.e., his future in politics. Here, however, because he's serving larger GOP purposes with keeping out a 59th Democratic senator -- he can persist in what he's doing.
I agree it's a mess. But I don't think the Senate can step in and end the litigation. That has to come from the state.
Possibly, though, the Senate could request a temporary Senator be named while the litigation continues? I don't know. I think that probably is purely the state's decision too. But it seems slightly more possible and plausible than the Senate butting into the actual election and post-election contest.
February 18, 2009 10:44 AM | Reply | Permalink
It is a matter of history. The Senate did exactly what you say they can't do in an Iowa election in the 1920's. The House did exactly what you say they can't do in an Indiana election in the 1960's. In the Bankhead-Heflin contest from Alabama in the 1930's, the BALLOTS were sent to the Senate (those which hadn't been burned already.) The Senate has several times rejected elected Senators for having bribed their way to office or other corrupt practices; the Senate made the ultimate call on the Wyman-Durkin race in the 1960's (neither was seated and a new election had to be held.)
Perhaps you have other information. What was your opinion based on, please?
February 18, 2009 11:09 AM | Reply | Permalink
Well, all of these cases predate Powell v McCormack, which interpreted this part of the constitution somewhat more narrowly. So there's certainly an argument to be made that this decision removes the Senate's authority here. Personally I don't think that's the case; in Powell the court appears to have held that the election itself wasn't in question (they weren't seating him because of corruption...no one claimed he hadn't won the election) which doesn't look like a problem in this case. But it's something to think about.
Ultimately if the Senate wanted to do a revote they could give it a shot, and it would probably end up in the Supreme Court...a markedly different court from that of 1967 and one that has already shown its willingness to act partisan. Of course as long as Franken leads, this is moot...the Senate doesn't want the revote anyway.
February 18, 2009 2:46 PM | Reply | Permalink
What alternate universe does Norm Coleman inhabit where he seriously thinks he could win a do-over election? His behaviour since election day surely is enough to make the citizens of Minnnesota cringe. And Al Franken has been behaving in a way that makes the idea of him as a senator a lot more plausible than people might have thought. And then there's Coleman's legal problems. And then there's the general asshattery of the Republican Congresscritters contrasted to the excellent job the Dems are doing. Add it all up and Coleman's prospects are in negative territory.
February 17, 2009 7:16 PM | Reply | Permalink
I think you seriously underestimate the natural Republican tilt of special elections. Getting the Democratic base to the polls for a single-seat election is just plain hard. Republicans consistently outperform polling in special elections, and they win a much higher percentage of those elections than they do of standard ones. If there were a special election (there won't be), I would consider Coleman a very dangerous opponent.
All that aside, I would be very interested in seeing current public opinion polls for Coleman and Franken. I share your intuition that Franken has been doing much better in the minds of Minnesotans.
February 18, 2009 3:32 PM | Reply | Permalink
No way, no how, no do-over. Minnesota voters aren't going to let that happen and they will be irate if that's what it comes to.
Norm's blowing smoke out of his posterior again. The election wasn't a disaster- it was close. Very, very close. The recount essentially went off without a hitch. The only disaster to grace MN has been Coleman and his baseless appeals.
February 17, 2009 7:18 PM | Reply | Permalink
Is there even a legal basis for such a thing?
It makes me wonder if the coleman campaign really even wants a do-over election or if they just want to be able to say later "WE DESERVED A DO-OVER, BUT THE ACTIVIST JUDGES WOULDN'T GIVE IT TO US"
February 17, 2009 7:37 PM | Reply | Permalink
Unless I miss my guess, it would take rewriting MN election law. There is no provision for anything like this.
February 17, 2009 9:01 PM | Reply | Permalink
I'm searching my memory banks, but in fact I'm pretty sure it has been done. I believe it was in New Hampshire some time in the last 10-20 years. The first count had one candidate ahead by about 10 votes. The recount put the other candidate ahead by about the same margin. The House (I believe it was a congressional election) declared that they could not determine who won and there was a new election.
I'm googling it and drawing nada, but I'm almost sure it happened.
February 17, 2009 11:29 PM | Reply | Permalink
It was 1974, the race for a Senate seat from New Hampshire.
Democrat John Durkin and Republican Louis Wyman were 10 votes apart after the recount -- but there were a number of problems (as there are in any election with that kind of margin) that left it open to challenge. Wyman asked for another recount, and won that by 2 votes.
There were very contentious hearings before the Senate Rukes committee and when they could not come to a conclusion, they engaged in bitter partisan fights and were deadlocked over who to seat. It took 6 months but in August 1975 they ordered a new election. In September, Durkin handily defeated Wyman (by nearly 30,000 votes) in the do-over and was finally seated.
February 18, 2009 1:02 AM | Reply | Permalink
So there you are. Even if Franken is certified, I'd expect the R's in the Senate to put on a full-court press to stop his seating and create a stalemate in an effort to have a repeat of NH1974. Can the D's get at least two Republican votes to stymie a filibuster? Who knows?
February 18, 2009 10:00 AM | Reply | Permalink
BUT the Senate Democrats won't even fight for it. Isn't it interesting how the Republicans can rule over the Democrats when Republicans are in a minority---but under Daschle and Reid, the Democrats have been totally impotent whether they were in the minority or the majority. What is wrong with this picture?
February 18, 2009 11:33 AM | Reply | Permalink
Time flies when you're having fun. More like 45 years ago. Harry Byrd was there, of course . . . and Ted Kennedy.
February 18, 2009 11:36 AM | Reply | Permalink
If there was another election, neither would win.
The Franken camp needs to draw Pawlenty into this fight. He doesn't want to be seen as hyper-partisan because he has higher aspirations. Should Franken win this case, he really needs to push publicly to be seated. If Pawlenty tries to play politics with that decision, he does so to his own detriment.
Or course Pawlenty can hide behind the law and Coleman's right to appeal this all the way up to the Supreme Court.
Amy Klobuchar shouldn't be taking on any extra workload. Let the calls go unanswered, it's the only way heat will start getting put on Pawlenty and Reid.
February 17, 2009 7:39 PM | Reply | Permalink
I think the whole thing is being run by the RNC or whatever players run the national Republican Party. This has nothing whatever to do with Minnesota because it isn't winning any points with Minnesota voters. The only point is to keep another Democratic vote out of the Senate. Pawlenty is a tool of the same folks so I don't see him helping Franken if it's national office he's after. If he was running for governor again maybe but not if he wants the favor of the national gang of thugs. This is scorched earth Republican extremism. They'll delay by hook or crook. Until the Democratic Party has the guts to start nailing them to the wall on few issues, nothing is going to change. Postpartisan, bi-partisan is for schmucks.
February 17, 2009 7:48 PM | Reply | Permalink
Just as they tried to shut down the Palin investigation in Alaska, they are attempting to shut down MN's Senatorial elsction. You'd think Minnesotans would be afraid they would be the victims as Floridians were in 2000. In that race the Republicans didn't want the ballots counted and in this one they want selected, in their favor ballots counted. They don't come any slimier than that ambulance chaser Ben Ginsberg. Any gasoline he can throw on this fire he will do it. I don'r normally, but in this case I'm looking for schaudenfreude.
February 18, 2009 10:11 AM | Reply | Permalink
Of course, this is what the game plan was all along. No surprise here. This is news?
February 17, 2009 7:54 PM | Reply | Permalink
Umm, how is the term "lead" being used "euphemistically"? What is "lead" a euphemism for? Vomit? Feces? Intercourse? I don't get it.
Also--if Minnesota's election system is "fatally flawed," wasn't Norm's election also "fatally flawed"? Or are elections only "fatally flawed" when Democrats win them?
These are the questions I have.
February 17, 2009 7:58 PM | Reply | Permalink
Hilarious. I had that same reaction. "Um, what's 'lead' a euphemism for? This lawyer is dumb."
February 17, 2009 8:12 PM | Reply | Permalink
Hmm.... I see how this goes. So any time a politician loses an election all they have to do is find somebody, anybody, who did not have their vote counted and presto magico, the election never happened.
Don't we assume that since humans are involved that errors will happen. As long as those errors are not driven by some overall goal or effect that would substantially favor one candidate over another, then they should cancel each other out.
February 17, 2009 8:06 PM | Reply | Permalink
This is what, day 43 of Minnesota being held hostage by Norm Coleman?
February 17, 2009 8:11 PM | Reply | Permalink
Let's see.
Court costs. Reduced representation in the legislature. Now, undermining confidence in the electoral system for transparently self-serving ends.
Someone who clearly places the interests of his former constituents first and foremost!
February 17, 2009 8:18 PM | Reply | Permalink
Court costs.
On the plus side, if the RNC is, in fact, bankrolling Norman, every dime spent on a futile attempt in Minnesota is a dime Michael Steele doesn't have for 2010 (although given Steele's apparently financial ineptitude, that might actually be a net good for the Republicans. . .).
If Norman's footing the bill, every dime he spends adds to his legal bills. . .thereby increasing the pressure on him to drop out and get a lobbying job that pays significantly better than Senator-grade pay.
February 17, 2009 8:28 PM | Reply | Permalink
Norm has no money of his own. He's a dependent of the powers that be. They probably even claim him as a deduction.
February 17, 2009 9:20 PM | Reply | Permalink
http://www.startribune.com/politics/national/senate/39667257.html?elr=KArks8c7PaP3E77K_3c::D3aDhUxWoW_oD:EaDUiD3aPc:_Yyc:aUU
As if we didn't already know.
February 17, 2009 11:31 PM | Reply | Permalink
Ginsberg also said that the variation across the state in how absentee ballots were screened for acceptance or rejection made this "a fatally-flawed election."
So when Norm declared victory on Nov. 5, that was all just bullshit?
And the stuff that's said now should be taken seriously because????
February 17, 2009 8:23 PM | Reply | Permalink
So how far back can we go with "DO OVERS"?
How about Norm's election to mayor of St. Paul?
How about when the candidate was born?
February 17, 2009 8:31 PM | Reply | Permalink
Isn't "fatally-flawed" a bit of a stretch?
Coleman better do a quick statewide poll to see if he really wants to go the do-over route. His welcome wore thin long ago.
February 17, 2009 8:44 PM | Reply | Permalink
Under Coleman's standards, there's no legal way for any state anywhere to accept absentee ballots. Which may be the idea.
February 17, 2009 8:51 PM | Reply | Permalink
Which is often the only way the military can vote. Why does Norm hate the troops?
February 18, 2009 10:49 AM | Reply | Permalink
i think MN law puts a premium on election day voting, and they allow same day registration. so absentee is considered a priveledge, not a right. they seem to beginning the appeal arguments now. and yes, the argument is, make the perfect the enemy of the well run, well meaning recount.
February 17, 2009 9:02 PM | Reply | Permalink
Norm strategy is to get the Junta Suprema to decide
February 17, 2009 9:55 PM | Reply | Permalink
I was saying that two months ago. And it's even more obvious now.
His only problem is getting himself in such a position that they can send an issue to the Supreme Court that would, if decided in Coleman's favor, be a game-ender.
Right now, if he were to send any of these dumb-assed, singular issues and won, it still wouldn't amount to anything.
February 17, 2009 10:17 PM | Reply | Permalink
Over at Kos a commenter mentioned that Minnesota has elections laws that have rules set in case of a exact tie. If that's the case, I can't imagine they'd throw a whole election out because it was close.
Has there been any heat on Coleman for taking the "consultant" job while still contending the election?
February 17, 2009 10:18 PM | Reply | Permalink
If I may say, I think the court made a big mistake when they allowed each candidate to have a say in the decision to keep some ballots in and take some out of the ones that had been already determined by the election officials to be invalid. There is no wonder that now the Coleman team continue to complain about the ballots that they themselves rejected when it came to Franken. Coleman changed the rules, not the election officials. He may file an appeal but I doubt if the court will rule in his favor. This will be the end of the road for Coleman. He has revealed himself to be a real Republican(scum bag).
February 18, 2009 12:23 AM | Reply | Permalink
Maybe. But given that the two candidates went along with it, I think there is a serious argument that Coleman has had due process on those issues and therefore he cannot demand in this trial to revisit them. That is, he would have to take an appeal to a higher court, but in order to do that he'd have to lose the election contest which I believe means that Franken would be seated at least provisionally.
February 18, 2009 3:53 AM | Reply | Permalink
Not only that, but having now been put on record as objecting to certain types of ballot flaws, it exposes his current arguing just the opposite as the opportunism that it is.
February 18, 2009 10:37 AM | Reply | Permalink
I'm not sure about this. I haven't seen the actual statute, but I have read in a couple places that the MN law prohibits granting the certificate until all appeals have been handled.
If that's right, I do think that's a major flaw in the MN law...one that I wouldn't be at all surprised to see the legislature deal with in short order. Pawlenty could veto it of course, but once this contest is over he really wouldn't have incentive to do so; next time it would just as likely for the situations to be reversed.
February 18, 2009 3:44 PM | Reply | Permalink
Coleman is a desperate man. He is already under investigation, he might wind up in the Big House.
February 18, 2009 12:26 AM | Reply | Permalink
Coleman thinks the election's fatally flawed? Because he can't wring a victory out of it, I assume?
February 18, 2009 1:08 AM | Reply | Permalink
Think there'd be the same kind of turnout in MN that they had last November? Doubtful. And Pawlenty'd get the Rethugs whipped up enough to venture forth in pretty strong numbers. (Not to mention Michelle Bachmann - HAH!)
I think this is the outcome we'd very much not want. I hope the courts slap this fool down -- aren't they sick to death of him yet?
February 18, 2009 6:47 AM | Reply | Permalink
I think people pushing for national election standards should hold this fiasco up as a prime example of how flawed the current system is. Considering how many elections we've seen come down to a handful of votes out of hundreds of thousands--or millions--cast, I am all for using instant runoff voting for all Federal offices. As it is, it's going to be too easy for one side or the other to present this election as a fraud to their partisans.
February 18, 2009 8:28 AM | Reply | Permalink
Please? Pretty please?
The RNC is behind Coleman to drag this stupidity on and on and on, and yet they are so far getting away with it in the MSM discourse. I'm not saying it's surprising but this is just goddamn ridiculous.
February 18, 2009 9:30 AM | Reply | Permalink
Minnesota law clearly defines what happens when an election is this close and there is nothing there about a "do over" as far as I know. This has gone on long enough though and the people of Minnesota need to start raising blue hell about this and soon
February 18, 2009 9:46 AM | Reply | Permalink
Again, he's following the script used in WA in 2004 by (now twice-) failed gubernatorial candidate Dino Rossi. The same outcome is inevitable. In each case, state election law was followed to the letter. No judge will overturn the reesults of an election for which this is true, absent clear and convincing evidence of fraud or mismanagement on a massive scale, of which Coleman has none (ditto Rossi).
It's really all over but the failed litigation.
February 18, 2009 10:05 AM | Reply | Permalink
Does anybody know who is paying Franken's legal fees? Maybe the GOP are just trying to run Franken out of money.
February 18, 2009 10:05 AM | Reply | Permalink
Al Franken is accepting donations for this legal battle.
I gave him a donation:
http://www.alfranken.com
February 18, 2009 10:34 AM | Reply | Permalink
To be fair to Coleman (which is damned hard, but I'm trying) he's just exploiting the destructive implications of the Bush v. Gore ruling, which effectively cast doubt on any election in which votes are counted (and recounted) at the county level by local officials using their own judgment to apply state law -- which is every election in America, at least that I know of.
So if you want to bundle anyone into a small plane (and, ideally, drop them over the Atlantic) it should be Antonin Scalia.
February 18, 2009 10:11 AM | Reply | Permalink
I know he can do it, but Scalia will have to become a TOTALLY ACTIVIST judge to get around the Framers'"original intent" language of Article I, Section 5.
February 18, 2009 11:28 AM | Reply | Permalink
Since 2000, when the Bush campaign came out against counting all the votes in Florida to decide who won, and the Supreme Court agreed, the whole concept of elections is considered in doubt, at least by the Republican Party. Seriously, they'd rather Minnesota go unrepresented for years, if necessary, than concede that the Democrat won.
February 18, 2009 10:19 AM | Reply | Permalink
That is not unprecedented. Minnesota went unrepresented in the Senate for 22 months when the defeated Farmer-Labor Party incumbent, a farmer named Magnus Johnson, challenged the election of Republican lawyer Tom Schall in 1924.
It seems "Shyster Tom" had raised campaign funds with a shakedown of Minneapolis bootleggers . . . taking their money in exchange for a promise to "protect" them from federal prosecution once he got into office. The challenge was heard, not by the courts, but by the Senate itself (See Article I, Section 5 of the US Constitution.) In the end, after almost two years, Schall wiggled out of it by blaming the shakedown on his campaign manager.
That poor guy took a fall and ended up in federal prison, while Schall was seated. Whereupon he made a sulphurous speech on the Senate floor, from which, as a historian says, "certain of his highly-seasoned remarks" had to be stricken from the record.
Magnus Johnson went back to his farm. The Farmer-Labor Party merged with the Democrats in 1944, which is why the Minnesota Democrats are known as the Democratic-Farmer-Labor Party (DFL) to this very day.
February 18, 2009 11:22 AM | Reply | Permalink
Rejecting prospective Senators sent by the states is what I had in mind -- although, a senator rejected because he had bribed his way into the office clearly goes beyond ministerial. How did the Senate come to this conclusion? What was the process?
Anyway, the examples you pose are interesting. Do you have any cites? I'm curious. Otherwise, I'll just see what I can find on my own.
February 18, 2009 11:56 AM | Reply | Permalink
Okay, nothing too helpful yet on Bankhead-Heflin. But, with regard to Wyman-Durkin, it seems that Durkin petitioned the Senate to review the case, the Senate granted the petition and took it up, questionable ballots were re-examined, the matter deadlocked, and Durkin then agreed to Wyman's proposed "do-over" of the election.
Nothing to suggest that the Senate can unilaterally decide to intervene. That said, I suppose one or the other candidate could petition the Senate? But, I wonder in whose interest it would be to petition the Senate in this matter? Franken, who probably likes the results he's got now? Or Coleman, who'd be looking at a Democratic majority?
February 18, 2009 12:09 PM | Reply | Permalink
I agree that the Senate is unlikely to take the initiative to "unilaterally intervene." A petition to the Senate would be the route to take, and would seem appropriate if Coleman loses the state court challenge and appeals to the federal courts. The issue would be jurisdiction---clearly given by the Framers to the Senate. At that point the Senate might intervene, if we had Democratic leaders with any guts. As to the prospect of a deadlock in the Senate . . . at least try it, and force Thugs into even more obviously partisan obstructionism. the citations would take more time than I have this afternoon; there were also cases from Montana, Pennsylvania, etc. and a plethora from the 19th century---a lot from the pre-17th amendment era.
February 18, 2009 2:19 PM | Reply | Permalink
"As to the prospect of a deadlock in the Senate . . . at least try it, and force Thugs into even more obviously partisan obstructionism."
I wonder if Franken would want to do that though. He's already set up to be the Republican's favorite whipping boy and catalyst for fund-raising. And, in all honesty, I don't know that I trust the Senate Dems not to come away with some horrendous deal in which they give up Franken in exchange for no filibustering of the next two nominations to the Supreme Court -- and which the Republicans later reneg on!
Still, I agree: it's an interesting possibility and one worth considering.
February 18, 2009 4:00 PM | Reply | Permalink
It is about time that Coleman and the GOP understand that Coleman LOST THE ELECTION AND FRANKEN IS NOW THE DEMOCRATIC US SENATOR. What is up with the Minnesota court system that they just don't put an end to this farce? Coleman give it up and go and find a job just anyone else would have to do.
February 18, 2009 1:12 PM | Reply | Permalink
When the fork is finally stuck in Normo, will he give a concession speech. I am thinking not.
February 18, 2009 1:24 PM | Reply | Permalink