Court To Coleman: No, We're Not Changing Our Ruling Against You
Norm Coleman is off to a rough start this morning, with the Minnesota election court having just formally denied his request for them to reconsider their ruling last week to stop him from advocating for certain rejected absentee ballots.
This isn't a big surprise, but it has some interesting ramifications. The court handed down a ruling on Friday that Coleman didn't like, because it immediately cut off about a thousand ballots that he wanted to put in the count. He then immediately turned around and asked them to change their minds, arguing that other ballots like these are already in the count, and the court didn't do it.
The important part here is that Coleman is establishing a record of this court shooting him down on matters of law -- which he will be practically certain to appeal should the trial end with him still losing the race. And remember that the Coleman camp is already calling out the vote count as "fatally flawed," hinting that one contingency plan for after this trial could be to seek a do-over election.
Josh
Matt
Eric
Brian
Next up, a motion to reconsider their denial of his earlier motion to reconsider...AAAAHHHHHhhhhhhhhhhh!
February 18, 2009 10:47 AM | Reply | Permalink
He may be carrying water for the repub "leaders" (if such they can be called), but doesn't all this just make him a laughingstock for any future in politics?
The repub party is looking more and more like a bunch of fools going west to pan for fool's gold.
February 18, 2009 10:53 AM | Reply | Permalink
He certainly looks that way to us, but I have to wonder how we'd be reacting if the tables were turned. This could conceivably be the Republican version of Kerry fighting the Ohio ballots, or Gore going to court for Florida -- on a small scale, obviously. Wouldn't we be cheering on our guy if we thought there was the barest hint of voter irregularity (imagined or otherwise)?
I mean sure, Coleman is an idiot, and his most of his claims are specious at best. But in Republican La La Land, is that really how they see it?
February 18, 2009 11:01 AM | Reply | Permalink
No. Not if the specifics of the case matched this one. I wouldn't encourage a Democratic candidate to keep contesting an election where the best argument is that "maybe someone made a mistake" or "maybe there's a difference between the way this election judge and that election judge decide what calls for a ballot to be rejected." If the SoS had been the state campaign chair for one of the candidates, if he had been moving voting machines out of the polling places where his candidate's opponent polled the strongest, if he had been changing the requirement for acceptable registration paper thickness such that his own office wasn't in compliance, if there had been a vigorus caging effort by his party, if there were massive challenges, rejections, and provisional ballots that were later thrown away, I would encourage my candidate to contest it.
Read Conyers' report on Ohio '04. The difference between the two is Mt. Everest vs. a bump in the road.
February 18, 2009 11:17 AM | Reply | Permalink
Oh, no doubt, which is why I put in the last line there. I'm speaking more of impressions of facts than facts from reality; ie, Republican spin on Coleman's contest. In other words, I don't think this is Coleman's political death. It might take him a few seasons to get independents back on board, but has his conduct cost him any of the party base?
February 18, 2009 11:25 AM | Reply | Permalink
But Coleman will sorely need those independent MN voters if he hopes to have a future run -- for Senator or Governor.
The only reason Tim Pawlenty is guv of MN right now is that there was a third party candidate (Peter Hutchinson) who siphoned off independent votes from the Dem candidate.
February 18, 2009 11:52 AM | Reply | Permalink
I don't think the GOP base would understand or appreciate my analogy. I think they're willfully ignorant of what really happened in the '04 and '00 presidential elections. And I think they just have a tough time distinguishing between reality and what they want reality to be. I think the base is shrinking anyway, but as it does, it becomes much more hardcore and hidebound.
I'd be surprised if Coleman ran for office in Minnesota again. I can't think of any Republicans who held statewide or federal office in Minnesota, got voted out, and came back again for a successful run.
February 18, 2009 12:01 PM | Reply | Permalink
Coleman has no future in elective office. His record so far: he won a race for mayor of St. Paul as a Democrat and then changed parties when there appeared to be a clearer path to higher office in the Republican party; he lost a race for governor to Jesse Ventura; he won his senate seat when the incumbent Paul Wellstone was killed in a plane crash (Paul was leading and gaining margin in the polls); and now this race.
He is a willing tool of Republicans that want to nurture a (false) sense of grievance in their base and clog up the workings of the Senate. That'll likely get him some rewards from lobbyists and right wing foundations, but no future office.
February 18, 2009 5:26 PM | Reply | Permalink
I strongly endorse your rejection of this "barest hint" mentality. No way this is how courts are supposed to work, Judge Ito aside. And we mustn't get caught up in the idea that unfairness is a two-way street -- it is the Republican way.
In this case, the court senses Scalia's acrid banana-republic break smelling up the backs of their necks and they fear that any arguably false move might give the high partisan the opening he's looking for, plain language of the Constitution be damned.
February 18, 2009 1:24 PM | Reply | Permalink
I agree any election as close as this would make it hard for the loosing party to accept.
That being said at some point this has to end. Were the courts to overturn the certified results of the election committee it would seriously undermine the integrity of the whole election process and the reputation of the Minnesota state government. The court had to realize this and has probably placed a fairly high burden on him to prove the election results where unfairly weighted against him. Absent such proof Coleman is just running clock either in a desperate hope that some fraud will be revealed or just to keep one Dem vote out of the Senate for as long as possible.
One more thing had we had an official methodical recount in Florida 2000 the country would have been spared eight years of an incompetent president.
February 18, 2009 11:56 AM | Reply | Permalink
It is already a Republican matter of faith that Franken stole the election; without asking their supporters to think too deeply, they argue Coleman was ahead on election night, court ordered procedures put Franken ahead, and therefore it's grand larceny. So far from being a laughingstock, Coleman is seen as Don Quixote, keeping the case going as long as possible to prevent The Usurper from taking office. I doubt regular Minnesotans see it that way, but Orange County Republicans do.
February 18, 2009 11:38 AM | Reply | Permalink
Not good enough, that they look foolish.
As expressed on these pages numerous times recently, the whole scam is to keep one legitimately-elected Democratic senator from being seated and voting, for as long as this shenanigan can be pulled off. Which should be a capital crime or something in this society... instead, it's working with bells on, every day that the state of Minnesota does not find some sort of legal rationale to ISSUE THE DAMNED CERTIFICATE.
BTW, at that point, it's pretty clear that the GOP will filibuster Franken's admission. THIS IS GOOD.
Because the context clues I'm receiving in the last couple of days are that the R's have so screwed the pooch with popular opinion and the welfare of the country, that even the testosterone-challenged Harry Reid might, with the blessing of the White House, make some move in the rulemaking area which would amount to the "nuclear option" that the GOP always threatened the Dems with.
Sure, the Wall Street Journal would call for his arrest for treason, but popular support would definitely be there, for ending what has clearly been widely perceived now as nothing but obstruction for its own sake.
Trying to prevent Franken, holding his election certificate, from being seated would be the perfect trigger for shutting off permanently the R's ability to filibuster henceforth.
February 18, 2009 1:44 PM | Reply | Permalink
Pardon me for asking, but I would expect the Court to have a leg up on this knowing full well Coleman is steering them in a direction to give him ample room to lodge a appeal - he's using them to make his case for an appeal.
February 18, 2009 10:55 AM | Reply | Permalink
Seems that the momentum is swinging Franken's way. Maybe this will soon be behind us.
February 18, 2009 11:39 AM | Reply | Permalink
Let's finish up the last of Coleman's lawyer team charades and get this vacant seat filled ASAP. Franken is our senator and he is sitting on the sidelines. The game's afoot and our side is down a man.
February 18, 2009 11:49 AM | Reply | Permalink
What do the voters of Minnesota think of Coleman's tactics? Is there any polling out there that speaks to this?
February 18, 2009 11:51 AM | Reply | Permalink
Way back when the trial started, Eric posted a poll showing that voters viewed Coleman's tactics with displeasure. I'm afraid I don't have a link since it's deep within the bowels of the TPM archives, but it didn't look too good for Coleman as I recall.
And if things were bad THAT long ago, they can't have improved much since then.
February 18, 2009 11:57 AM | Reply | Permalink
Please remember that we Minnesotans put Michele Bachmann, Jesse Ventura and Norm Coleman in public office. We fish through holes in the ice during the winter. Do you really want to see those poll results? :) It would be difficult to overstate the level of mass insanity here.
February 18, 2009 11:58 AM | Reply | Permalink
Speaking of bachmann. They let her out of the asylum again temporarily. How did you people find this nutter?
http://minnesotaindependent.com/26721/bachmanns-statements-on-stimulus-raise-a-few-eyebrows
February 18, 2009 12:21 PM | Reply | Permalink
I occasionally forget about Ms. B.
I wonder if having an intelligent, articulate and thoughtful person in the White House will prompt voters to look more closely at the people they send to Congress.
Sure, Bachmann sounds like a nutball, but her words have been viewed in the context of the Decider in Chief.
My cat sounds articulate in that context.
February 18, 2009 12:59 PM | Reply | Permalink
It’s not a representative sample, but the comments on related articles are running strongly against Coleman in the Minneapolis-St.Paul Star-Tribune.
February 18, 2009 12:47 PM | Reply | Permalink
Obviously Norm is nothing but a stalking horse for the GOP at this point. He must have already decided to get out of politics if this doesn't pan out. I wish him all the luck in the world. (Getting out of politics, that is.)
February 18, 2009 11:53 AM | Reply | Permalink
Actually, "we" Minnesotans put the first Muslim member of the House of Representatives in office. It was some other Minnesotans in a predominantly red part of the state who helped elect nutbag Bachmann. They also had help from a third party candidate. I think we've got a problem in this state with third-party spoilers. IRV might help that.
February 18, 2009 12:12 PM | Reply | Permalink
There are no interesting ramifications in a ruling denying a motion for reconsideration Eric
February 18, 2009 11:56 AM | Reply | Permalink
Has anyone who actually knows the law given an opinion on whether this case will constitute the end of the "contest" phase, or whether Coleman will be able to keep Franken out of the Senate for as long as he can drag out the appeals?
In a comment a week or two ago, someone suggested that perhaps the court could specifically rule that this ended the contest and that further appeals would be procedural (or something like that), but I don't know if we've heard from someone with specific knowledge of Minnesota election law.
February 18, 2009 11:57 AM | Reply | Permalink
This is a question of statutory interpretation, for which there is no clear answer. What's relevant is that the state AG has asserted (in Franken's request for a provisional certificate) that it would advise that the certificate must wait until the appeal is decided. Pawlenty will gladly follow that advice.
So this is an issue that it seems the MN S. Ct. is considering as it decides Franken's request for a provisional certificate, and we may see them clarify the law, which does not clearly say one way or another.
February 18, 2009 12:09 PM | Reply | Permalink
Just a minor point: It wouldn't be a *provisional* certificate of election. It would just be a certificate of election. The certificate could then be revoked (pursuant to Minn. Stat. Ann. 209.07), if Coleman prevailed.
February 18, 2009 12:45 PM | Reply | Permalink
Thanks for the statutes. The appellate process is statutorily very fast, which is a good thing. Once this dog and pony show is done, it won't be long before franken is seated. Also, the statutes are pretty clear that the certification isn't issued until the appeals are exhausted, when you have a republican governor who is an a** and wants to muck up the process and not certify the election.
February 18, 2009 12:54 PM | Reply | Permalink
My understanding is that the certification is not issued until the appellate process is exhausted. Now the appellate courts can expedite the appeals and the appellate process will probably not take as long as this bogus trial. The court couldn't cut off his appeals, the appellate courts could just expedite them.
Caveat, I do not expressly know minnesota election law. I am just familiar from what has been published and discussed.
February 18, 2009 12:09 PM | Reply | Permalink
IANAL, but doesn’t an appeal have to be based on an actual legal error by the lower court? One might argue about the panel’s decision on which absentee ballots to include, but is there a legal error?
February 18, 2009 12:52 PM | Reply | Permalink
Oh, you can always find alleged legal error for an appeal. Luckily the appellate process is statutorily very fast, so once the lower court gets its act together and stops this nonsense, the appeal will be quick.
Once way they could expedite is do 12 or 14 hour days. There is nothing as far as I know preventing them from doing that. That's an idea.
February 18, 2009 12:56 PM | Reply | Permalink
Just my 2 cents worth ... I think you're right - an appeal has to be based on an actual legal error by the lower court. And I think that's what Coleman is starting to angle for. He's going out of his way to force the court to make an error against him so as to give him legal footing to mount an appeal to override the current court findings.
February 18, 2009 1:03 PM | Reply | Permalink
I can't pretend to know Minnesota election law. Nonetheless, the annotations to Minn. Stat. Ann. 209.07 (results of contest) reference the case of Fitzgerald v. Morlock, 120 N.W.2d 336 (Minn. 1963), which appears to be on point. That case involved a contest election for state representative. After the trial court found in favor of the contestant, the county auditor issued him an election certificate. The contestee appealed and asked the Minnesota Supreme Court to prevent the contestant from being seated. The Court held that the election certificate was premature, and illegal, because the appeal was still pending. Specifically, the Court held that:
"The issuing of the certificate in the instant case was premature and this court upon the state of the record was justified in issuing its order restraining and enjoining the contestant from presenting the illegal certificate of election to the house of representatives or otherwise using it until a final judicial determination of the issues involved on this appeal may be had." Id. at 338 - 339.
There are two important things that need to be considered before applying that holding of Fitzgerald to this case, however.
First, Fitzgerald was decided in 1963 and since then Minnesota election law has undergone several revisions. I have not analyzed whether those revisions would affect the holding.
Second, an election for state representative is different than an election for United States Senate. Those differences may result in a different outcome than Fitzgerlad. More importantly, per Article 1, Sect. 5, cl. 1 of the United States Constitution, the Senate is the judge of the election of its members. So far, the Senate has chosen to defer to the state process, but it need not continue to do so. I would hope that a trial court decision would give the Senate leadership the political cover that it needs to seat the winner, regardless of whether Minnesota issues an election certificate.
February 18, 2009 1:16 PM | Reply | Permalink
On the senate governing the election of its members, I believe that there is a Senate Rule requiring state certification, which would have to be changed by 2/3rds of the senate. Not gonna happen.
Also, pawlenty could certify and he is not doing so, as you pointed out concerning the revocation of the certificate under 209.07. Maybe this situation will get minnesotans to vote in dem governors in the future.
February 18, 2009 1:22 PM | Reply | Permalink
As I read Senate Rule II (presentation of credentials), there is no specific requirement for an election certificate. All that the rule requires is a presentation of "credentials" without specifying what form those credentials need to take.
The counter argument to my reading is that Section 2 of the Rule requires the Secretary of the senate to keep a record of the certificates of election and record the names of the governors and secretaries of state signing them. One could conclude that implicity requires a certificate of election signed by the governor and the secretary of state.
I don't agree with that counter argument because it would allow state governors to improperly prevent the seating of United States Senators. I think that the Rule reserves the authority to the Senate to determine what it will accept as the proper credentials. The recent precedent set by Roland Burris supports my argument. The Senate ultimately seated Mr. Burris without a signature from the Illinois secretary of state. (When a senator is chosen by election, rather than gubernatorial appointment, there is no reason that the governor's signature should be any more necessary than a secretary of state's signature.)
In this case, the Senate could decide to accept the certificate of results from the state canvassing board, along with a decision from the trial court, as the credentials for Al Franken. (Or just the decision from the trial court if Norm Coleman wins the contest.)
February 18, 2009 2:03 PM | Reply | Permalink
I thought that burris went back and got the secretary of state to sign and the secretary of state signed. Also, coleman could sign a certificate of election and he is choosing not to based on the bs argument of the contest. I don't think a governor or secretary of state could arbitrarily refuse to sign. They would be subject to a writ of mandate in the state court requiring the signature.
I think that the rule precludes the seating in any event. Also, the republicans will filibuster the seating based on the rule and the fact that the process is still playing out in minnesota. The senate dems are really powerless in this department and it is up to minnesota to get it's act together and get on with it.
February 18, 2009 2:10 PM | Reply | Permalink
Illinois Secretary of State Jesse White never signed Roland Burris's certificate of appointment. The Illinois Supreme Court denied Roland Burris's petition for a writ of mandamus to compel Secretary White to sign the certificate. The Court concluded that the Secretary was not required to sign by state law and that Senate Rule II only recommended a form. Shortly thereafter, Secretary White provided Mr. Burris with a certified copy of the unsigned certificate of appointment.
I agree that there is a risk of filibuster. The Republicans will face two problems with that, though, I hope.
First, if the trial court rules in Al Franken's favor, then there will be a strong public perception that Franken is the victor and the Republicans will face a significant backlash from the public.
Second, Senate Rule II provides that the presentation of credentials "shall always be in order." I believe that means the Republicans will have to do a real filibuster that holds up the business of the Senate. (Not just the B.S. non-filibuster filibuster that Harry Reid has allowed for the last two years.)
I wish Harry Reid would come out at this point and publicly say that he will move to seat whoever wins the contest in the trial court. That creates a risk of the Democrats having to seat Norm Coleman if he wins, but frankly I think Coleman should be seated in that event. By making that public statement now, Reid will appear less partisan when moving to seat the winner, and he will put more pressure on the Republicans to accept the result without filibuster.
February 18, 2009 2:40 PM | Reply | Permalink
I thought he signed the certificate.
http://news.yahoo.com/s/politico/20090109/pl_politico/17295
Senate dems should stay out of this until minnesota completes its process and issues a certificate. It would not set a good precedent for the senate to step in and step on the toes of a state's election processes. Also, the republicans would prevent the seating anyway so it is a moot point and would just set a bad precedent that could bite them in the butt in the future.
February 18, 2009 2:48 PM | Reply | Permalink
Read the article that you linked above more closely. Secretary White never signed the actual certificate of appointment. He signed a separate document that certified that he was providing a true and accurate copy of the unsigned certificate of appointment.
By the way, I've read conflicting reports on whether Secretary White even personally signed the separate document. Some reports state that the copy was just certified by his office with a stamp. Either way, though, Secretary White never signed the actual certificate of appointment.
February 18, 2009 3:02 PM | Reply | Permalink
There have been lots of people arguing that Senate Rule II does not explicitly require a certificate. However, that's the way the rule has been interpreted by the Senate for 125 years, and their interpretation is the only one that counts. They made that pretty clear during the Burris brouhaha.
February 18, 2009 2:25 PM | Reply | Permalink
I've seen several people assert that the Senate has interpreted the rule that way for 125 years. I've yet to see anyone support that assertion though.
If you can provide me with a case where this question arose and the Senate ruled that the rule requires a certificate signed by the Governor and the Secretary of State, then I'd be interested to read it.
February 18, 2009 2:48 PM | Reply | Permalink
Also, as I mentioned above, Al Franken can provide the Senate with an official certificate stating that he obtained the most votes in the election. He just needs to give them a certified copy of the state canvassing board's declaration of the results.
February 18, 2009 2:58 PM | Reply | Permalink
Off topic, but outrageous. Can you believe this??????? Fox entertainment is unbelievable.
http://www.huffingtonpost.com/2009/02/18/new-york-post-chimp-carto_n_167841.html?clear
February 18, 2009 12:16 PM | Reply | Permalink
The entire affair in Minnesota has become a joke which is, of course, the entire point of what Coleman is doing. He wants to delegitimize the election entirely. I am shocked that there is no effort on the part of the Democratic Party in Minnesota and nationally to simply have Franken declared the winner or to otherwise force the point right away. The inexcusable delays in deciding this election need to be brought to a halt and a definitive ruling reached that will allow Franken to be sworn in despite any appeals the idiot Coleman may pursue.
February 18, 2009 12:47 PM | Reply | Permalink
norm may be pushing for a do-over, but who would have the authority to grant one, when it is not one of the remedies provided in state law?
February 18, 2009 12:49 PM | Reply | Permalink
The Senate has the authority to declare a seat vacant. It happened in New Hampshire in 1974.
http://en.wikipedia.org/wiki/John_A._Durkin
February 18, 2009 2:31 PM | Reply | Permalink
But if they did that, wouldn't it mean that Pawlenty would be able to appoint someone to fill it? And if he does, the someone he appoints sure isn't going to be Franken!
February 18, 2009 3:30 PM | Reply | Permalink
He's hoping to hear the familiar Republican war cry coming from a Waaaabulance..........
February 18, 2009 1:09 PM | Reply | Permalink
Just how would one (fairly) engage in a do-over under such circumstances anyway? Would you have to have the same slate of candidates? The same set of other races on the ballot? Would you have to hold it in the same weather? Would trying Coleman's forgers for vote fraud right around the time of the election be considered inflammatory?
February 18, 2009 1:38 PM | Reply | Permalink
It is February 18th, some 45 days since the recount ended and still Franken is not seated. Didn't Coleman's lawyers want this to stretch to when the ice breaks up on Lake Wobegon?
I am wondering if the MN Law holds that all appeals must be completed before the Governor certifies the election?
February 18, 2009 1:38 PM | Reply | Permalink
Minnesota law probably does require that the appeals be finally determined, but maybe this will be handled differently because it is an election for United States Senate instead of an election for state office. I explain my reasoning in this comment above in this thread.
February 18, 2009 2:10 PM | Reply | Permalink