Senate GOPers Cite Bush v. Gore For Possible Coleman Win
Three words seem to be on the minds of Senate Republicans, looking for a way to get a Norm Coleman victory: "Bush v. Gore."
This all comes from the case made by the Coleman campaign that Minnesota's county officials committed a constitutional violation by varying in different ways from the state's official uniform standards of admitting or rejecting absentee ballots. Indeed, the Coleman legal team alleges that the counties violated the equal protection clause, and that the judges violated the due process clause by imposing strict standards for any additional ballots during the trial.
The Politico reports that NRSC chairman John Cornyn said: "The Supreme Court in 2000 said in Bush v. Gore that there is an equal protection element of making sure there is a uniform standard by which votes are counted or not counted, and I think that's a very serious concern in this instance." Other Senate Republicans, including Mitch McConnell, Jeff Sessions and Lindsey Graham, have also spoken approvingly of a Bush v. Gore approach.
This is actually different from the cited issue in Florida in 2000 -- which involved a lack of uniform standards to determine voter intent on disputed ballots -- because Minnesota law already solved that problem by sending challenged ballots to the state canvassing board for adjudication last December. And on top of that, this issue goes back to Election Day itself, not just the recount. On the other hand, though, it does provide an opening for more litigation.
Another fun thing about the Bush v. Gore ruling is that the majority opinion contains the following: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." In plain English, the five Supreme Court Justices declared that their ruling was not to be taken as a precedent for interpreting the law in the future. We may well find out just how binding that statement was.
Josh
Matt
Eric
By the Coleman "standard" for elections, no state in the country could prove a valid election. If the Republicans are going for either anarchy or a very strict form of Big Government, this is a good road to head down.
March 17, 2009 10:14 AM | Reply | Permalink
The Coleman "standard", put plainly, says that a theoretically perfect election and recount is not enough; there must be an absolutely perfect contest. An election where it was determined that there was a 99.9% chance of accuracy would have to be invalidated, according to Coleman's legal theory.
The danger here is that this idiocy is being judged in a court of law. Despite my ultimate faith in the Minnesota end of things, we are living under the sword of Damocles, here; if a gavel ever comes down and asserts that only an absolutely perfect election contest, not subject to the laws of probability, can be legally certified... kiss democracy goodbye, because elections just got outlawed.
Now as to SCOTUS: I believe, as I have seen a few folks here claim also, that they definitely could re-use the 2000 pull-it-out-of-their-butts "equal protection argument". This, despite the big disclaimer that this was a once-in-a-lifetime offer, set to expire after they went home (that is just so outrageous, I still can't believe the peasants didn't descend on DC with pitchforks and torches, and burn the damned place down!). They'll surely do what they have to, to protect their own. You naive little rubes with your silly "rule of law"...
The difference THIS time is, we've been to that movie already. If SCOTUS tries pulling that stunt again in 2009, I predict we will not be so shell-shocked, this time, as to let them get away with stealing another election for their Republican friends. This could manifest itself in a number of ways; the most disheartening being a massive lack of respect for all governmental authority, and the breakdown of order.
Trust me... this absolutely would not stand. Not .
March 17, 2009 1:48 PM | Reply | Permalink
What is interesting is that the Coleman people have not thought Bush v. Gore through. Remember, in B v. G, the USSCT stopped any FURTHER counting of ballots -- they kept all of the ballots that had already been counted.
The Coleman people may talk about the B V. G equal protection standards, but they certainly woudl not want the remedy from that case (call teh election as it currently sits); rather, they wan the court to throw out the entire election -- a remedy that the USSCT probably does not technically have, since the Constitution makes the Senate the final arbiter of the election process.
March 17, 2009 5:09 PM | Reply | Permalink
"On the other hand, though, it does provide an opening for more litigation."
More litigation is a dead end. It's a tip off to the argument they'll use in trying to block Franken's seating when it comes to the Senate. The only question remaining is whether they can maintain party discipline to do so.
March 17, 2009 10:17 AM | Reply | Permalink
Exactly. Sadly, I think media coverage is now more important than legal merits. If the prevailing meme is that courts have not yet determined the legitimacy of the election, then the Republicans may have the ammunition to maintain party discipline. On the other hand, if the prevailing meme is that its really over and Franken won, then he gets seated.
March 17, 2009 12:16 PM | Reply | Permalink
If you don't think that bunch of rightwing political hacks we call a Supreme Court will happily overturn their own precedent and use BvG to seat Coleman, pass me some of what you're smoking.
If this case goes to the USSC, we lose. Our only hope is that they determine that it's purely a question of state law and refuse to grant certiorari.
March 17, 2009 10:19 AM | Reply | Permalink
I expect they won't take the case, but for a different reason. The Senate can cite their Art I Sec 5 power and tell the Supremes to bugger off and there won't be a damn thing the court can do about it. They won't want to take a chance on looking impotent just for Norm Coleman.
March 17, 2009 10:21 AM | Reply | Permalink
With all due respect, Eric, I think the media, with POLITICO in the lead, are over-hyping this angle. The only sane motivation of the Coleman team in highlighting Bush v. Gore (a decision that associates them with Bush's presidency) is to intimidate the three MN judges. Maybe that will work, but I doubt it. Those judges have been proceeding carefully, will ask for more votes to be counted -- probably resulting in the status quo or a stronger Franken lead -- and will produce a careful opinion that the MNSC will uphold.
It is just implausible that, after that, if Coleman chooses to continues to deploy himself as a national Republican delaying tactic, the Supreme Court USA will actually take this case. Accepting such a case would immediately constitutionalize all discrepancies in counting interpretations across counties and states in the US -- involving the Court itself in adjudicating close elections from now on and in working out the messy details of standards for interpreting and tallying votes everywhere.
Existing scholarship on Court decisions does show that political orientations of Justices matter, but also that Justices tend to act to protect the autonomy and legitimacy of their own branch. Extending Bush v. Gore to all state elections would embroil and undermine the Court. Even the original authors of that very risky opinion knew this, which is why they said in plain text that the decision was not a precedent. Now there is a new Chief Justice who would be dooming his own institution to perpetual politicization if he chose to -- what? -- play Mitch McConnell's game? Why would he want to do that?
All the SCUSA has to do is dodge the case. They will, assuming Coleman even tries to go forward after the MNSC. It will all be over by mid-April.
March 17, 2009 10:29 AM | Reply | Permalink
Excellent comments. I would add that any allegation that there were not "uniform standards" for the recount is pretty ridiculous given the fact that there was an entire manual of standards published and distributed for the recount.
Link (PDF): www.sos.state.mn.us/docs/recount_guide_2008.pdf
March 17, 2009 11:33 AM | Reply | Permalink
Eric, two things:
1. The standards in the recount guide are not binding. Moreover, they're no more specific than Minnesota's statute.
2. The BvG angle here is not about voter intent but rather absentee ballots that were improperly accepted. It's weird, but that's what they got. So, the standards would be irrelevant to Coleman's potential claim.
i don't think coleman wins on this. the court may take it for fun, but it's a loser of a case and it won't stop franken from being seated. the state supreme court has already indicated that if franken wins the contest and any appeal, a certificate of election will be issued for him. that will be enough to get him seated in the senate, federal lawsuits be damned.
March 17, 2009 2:45 PM | Reply | Permalink
Extending Bush v. Gore to all state elections would embroil and undermine the Court.
The real question is ... does the Judiciary have a Constitutional role in determining elections? I believe elections are covered in the 10th Amendment - powers not granted to the National government nor prohibited to the states are reserved to the states and to the people. SCOTUS would have to cite established law and cases articulating their right to intervene in an area not within their jurisdiction. Besides, Gore v Bu$h wasn't based on any known precedent or documented legal opinion - it has nothing to establish its legal footing. It's nothing more than a kite flying in the wind on an extremely thin string. One good strong gust of wind, the string breaks and the kite sails away.
March 17, 2009 11:53 AM | Reply | Permalink
This is covered by Article 1, Section 5, clause 1: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members...." You are correct that the Judiciary's role is limited, but it's not reserved to the states. It's assigned to the Senate.
March 17, 2009 12:50 PM | Reply | Permalink
Of course the GOP is going to hype this, they want it to go all the way to the Supreme Court, as it just means Franken will be delayed seating longer. It's nothing but obstructionism, and given they see a favorable 5-4 split on the SC, they probably figure they at least have a shot at winning.
March 17, 2009 10:33 AM | Reply | Permalink
Of course, the sad attempt to limit the holding to only Bush v. Gore shows how intellectually, legally and morally bankrupt the opinion was in the first place....
I think you outline all the reasons why it isn't relevant. Theda also makes a great point about the can of worms the SCOTUS would open for itself by taking this case.
March 17, 2009 10:44 AM | Reply | Permalink
If there is one thing true of this Court, they are a lazy bunch. I do not think they will get involved in a Senatorial race. It was different when it was W. But one Senator either way is not really going to make a lot of difference. The Dems did not get filibuster proof, although they had an excellent outcome. The only thing the SCOTUS will do is delay their decision not to decide so the Dems are left with a more difficult situation, but as we have seen, not untenable.
March 17, 2009 1:51 PM | Reply | Permalink
Bush v. Gore = More Repugs on the court than Dems. Period.
So, what is the political composition of the Minnesota supremes?
Don't waste time, just give us the head count.
March 17, 2009 10:48 AM | Reply | Permalink
IMO, this has little or nothing to do with either winning for Coleman or further delaying Franken's seating. Instead, I think it is about delegitimizing Franken's election, making it fit into the ongoing Republican "voter fraud" narrative. The notion that the only reason Democrats are ahead now is because they are evil and corrupt and stole elections left and right (because, you know, that's what those people do) is profoundly pleasing to the base. Feeds their latent racism, tells them that there's nothing fundementally wrong with their idology and, best of all, gives them emotional cover for their own decided penchant for attacking election results.
March 17, 2009 10:48 AM | Reply | Permalink
But you must look at the current reality: they can fit anything they want into their steenkeeng "narrative", but it doesn't matter anymore. The majority of Americans have left the theater, at this point. Their audience is down to a piddling few, and getting fewer.
Sure, we spent decades in this country under a political climate, where reality was determined officially by who won the spin war. But when that was operative, the people were still willing to give their information sources the benefit of the doubt.
It's a cinch that if the R's promote a talking point, such as "Al Franken is illegitimate!", the MSM will promote the hell out of it... as always. But their influence has waned, and the old MSM->public opinion structure has been broken. Most normal people today will not consider Franken illegitimate, after he's seated, no matter how loudly they squeal.
So cheer up a little, already. The worst part of this whole thing is the perfectly legal way the R's have devised, through Coleman, to de facto deprive citizens of representation, via delay and obstruction. This should, by rights, be unconstitutional.
March 17, 2009 3:24 PM | Reply | Permalink
And Bush vs. Gore's result brought us such a wonderful 8 years. Good times.
March 17, 2009 10:49 AM | Reply | Permalink
Isn't the problem with them (the GOPers) invoking Bush v Gore that the USSC made it clear in their decision that that case could not be used as precedent?
The Supreme Court presented no relevant precedent for their interpretation of the equal protection clause in this ruling and further stated that this interpretation applied ONLY to Bush v. Gore and was not to be used as precedent in any future case. According to the decision, "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
March 17, 2009 10:54 AM | Reply | Permalink
Ooops...I see Eric addressed that in the final paragraph. Great minds and all that.
March 17, 2009 11:02 AM | Reply | Permalink
That language hasn't stopped federal courts from relying on Bush v. Gore. By my count, the opinion has been positively cited by federal courts 132 times since it was decided.
March 17, 2009 12:12 PM | Reply | Permalink
As I understand it, once this gets settled in the Minnnesota SC the state statute is satified and a certificate of election is required of the governor and secratary of state. Once that cerificate is presented to the senate seating the elected candidate is just a proceedural formality and cannot be blocked by filibuster. Am I right so far?
If all of the above is true and Franken wins the contest as it seems he will then an appeal to the SCOTUS would be asking the court to overturn a state election and unseat a serving senator. All of this while promoting the image of Coleman and any one who supports him as a sore looser. And the only real up side for the Republicans is the off chance that the court will hear the case and maybe find in Coleman's favor. Well there is throwing a monkey wrench into the use of absentee ballots in all future elections if they win. That sounds pretty thin but then I won't bet against GOP hutzbah. They sure have more of that than sense.
March 17, 2009 11:15 AM | Reply | Permalink
"Once that cerificate is presented to the senate seating the elected candidate is just a proceedural formality and cannot be blocked by filibuster. Am I right so far?"
I'm pretty sure this part is not correct. The Senate has to vote on accepting a Senator's credentials, and it can be filibustered. As I said above, I believe all this talk from McConnell and others is just setting the stage for them to use this as cover for an attempted filibuster. There will be a hellacious amount of arm-twisting to try to maintain party discipline, but I don't think they can pull it off.
March 17, 2009 12:02 PM | Reply | Permalink
But, Goofy, I think that it would be politically untenable for a minority of Senators to deny someone with an election certificate a Senate seat.
March 17, 2009 12:30 PM | Reply | Permalink
Which is exactly why they need Bush v. Gore as a fig leaf.
March 17, 2009 12:53 PM | Reply | Permalink
I agree that seating Franken will require a cloture vote. Presentation of credentials is Senate Rule 2. The cloture provision, found in Section 2 of Senate Rule 22 expressly provides that it applies to Senate Rule 2. Nonetheless, the presentation of credentials does enjoy some special procedural treatment. It "shall always be in order" and the Senate must proceed with it until all questions and motions arising under the presentation are "disposed of." To me, that language on its face requires all other work in the Senate to halt once Franken presents his credentials until the issue is resolved. That's not what happened in the Durkin-Wyman controversy though, so perhaps I am misreading it.
March 17, 2009 1:05 PM | Reply | Permalink
Read that section more closely
"And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn...then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of."
"that question" refers to the cloture motion. Thus, only if the cloture motion passes does the Senate have to proceed to voting on the matter.
March 17, 2009 1:30 PM | Reply | Permalink
I think you misread my comment. I was quoting from Senate Rule 2 (presentation of credentials) not from Senate Rule 22. I agree that (per Senate Rule 22) the Senate proceeds to a vote on the credentials only after a successful cloture vote (3/5ths). Nonetheless, Senate Rule 2 provides that the presentation of credentials shall always be in order and must be proceeded upon until disposed of.
To my reading, then, Rule 2 requires the Senate to immediately begin debate on Franken's credentials once they are presented and to continue the debate until there is cloture and a final vote. That would mean that Republican filibuster would prevent the Senate from conducting any other business. As I mentioned, that apparently isn't what happened during the Wyman-Durkin controversy, so I may be misreading Rule 2. I'm not sure how, though. That language looks rather clear to me.
March 17, 2009 4:00 PM | Reply | Permalink
Except that the SCROTUM, I mean SCOTUS, went out of its way to state that Bullshit v Gore WAS NOT PRECEDENT. It was a one-offer as it were.
March 17, 2009 11:22 AM | Reply | Permalink
Amusing that Bush v Gore carried the caveat that it stunk so bad that "use once and discard" was written on the label. More amusing that apprentice inmate Coleman trotted it out. If Colemans idea is to paint himself as a typical gooper thug that has no respect for rule of law, he is on the right path.
March 17, 2009 11:53 AM | Reply | Permalink
It's hard to believe the Supremes would further damage their credibility by granting cert in this case. It's also hard to believe that the U.S. Senate, spineless as its leadership might be, would allow the line separating the powers to blur quite this badly. Nevertheless, should Scalia and his pals steal another election, it would be fun to join a groundswell for their impeachment. Gee...a left-leaning court might be worth one lousy Senate seat, don't you think? And in 2014 Minnesota voters no doubt would give Norm his walking papers, once and for all.
March 17, 2009 11:38 AM | Reply | Permalink
What does a supreme care about credibility?
March 17, 2009 11:48 AM | Reply | Permalink
Inasmuch as a lack of credibility reflects on their legacies, they care quite a bit. This is the most ego-driven of our government's branches, occupied by "supreme" deciders appointed for life. Look at Scalia's response in his "60 Minutes" interview with Leslie Stahl to a question about Bush v. Gore. He doesn't dismiss it by declining to respond; he dismisses it by ordering us to "Get over it." By minimizing the issue through ridicule, he attempts to minimize the significance of the decision. In other words, he says, "Remember me for something else, something that matters."
March 17, 2009 12:06 PM | Reply | Permalink
As most supremes hold office until they die, I doubt they are much concerned about "legacy" or the memory of them after they are dead. Why would they care?
March 17, 2009 2:21 PM | Reply | Permalink
By those standards, why would anyone care about legacy? Yet here is George W Bush, along with his myopic minions, busy spouting revisionist history. W claims that we can't know what history will make of his presidency because we'll all be long dead by then. AND YET HE CARES VERY MUCH ABOUT HIS LEGACY. So do the Supremes-- whether you can see that through YOUR myopia or not.
March 17, 2009 2:36 PM | Reply | Permalink
... should Scalia and his pals steal another election ...
First, Gove v. Bu$h happened when there was a void in the White House and Congress - transition between old and new.
Second, current the White House has an fiesty occupant and Congress is in session - heavily in favor of the Democrats.
If Scalia thinks he can usurp Constitutional powers outside the Judiciary, I believe he may be in for a surprise. Perhaps, we may witness an actual SCOTUS impeachment process.
March 17, 2009 12:06 PM | Reply | Permalink
Not only that, but in Bush v. Gore there was no body that could oppose the ruling. This time the Senate could easily tell them to bugger off and there wouldn't be a damn thing the Senate could do about it.
March 17, 2009 2:06 PM | Reply | Permalink
When the hell are Franken and the Dems start making a frickin ruckus about this bulls*it? Publically shame the s.o.b.(s) already!!
March 17, 2009 1:06 PM | Reply | Permalink
Can you imagine the HUE AND CRY from Republican quarters if the roles were reversed here and Coleman was losing on Nov. 5 but leading after the recount? Sean Hannity's head would have exploded by now, sending a smattering of tiny, numbed, grey cells all over Glen Beck's wet hankie; Bill O'Reilly would have blown a gasket in the shower with his favorite loofah; and Michele Malkin would have her cheerleader panties in a complete bind. Not only would MN Gov. Tim Pawlenty have signed Norm's election certificate, but also the Republican villagers, led byMichele Bachmann, would have surrounded the Sec. of State's office brandishing pitchforks and torches and demanding he follow Pawlenty's lead. The people elected Franken; but the G.O.P. mob mentality has labeled him Frankenstein. A clear case of projection.
March 17, 2009 2:53 PM | Reply | Permalink
I think you are on to something here. I've been reading the Minneapolis-St. Paul Star Tribune coverage for several weeks now and I'm seeing a trend. Although the Strib, as they call it, is unabashedly pro-Coleman, those who write in are not by about 25 to 1 (no, I didn't count!). The staunch Republicans who have something to say often comment about stolen elections, bought elections, double counting, and ACORN. They generally avoid the facts of the case, but frequently revisit the same talking points. This always makes me suspicious that some right wing radio commentator has gone off on a particular tangent they all listened to and repeated. If the Strib's commentors are any indication, MN is strongly behind Franken at this point.
Then there's the national press. I know that the last thing my paper (San Diego Union-Tribune) had to say about this recount was to report the MN Supreme Court decision not to issue an election certificate at that time; before that, nothing for weeks. In my checking of other papers, I generally see things that seem to me as if the reports are being sourced by Ginsberg's comments in the hallways. I was also startled that CNN didn't have anyone covering closing arguments. If the national "legacy press" is so lazy that they have failed to actually follow the hearing in favor of just listening to the most excited-utterance presser, that could be a problem when the outcome is finally reported.
March 17, 2009 1:17 PM | Reply | Permalink
"Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." END OF STORY!!
March 17, 2009 1:44 PM | Reply | Permalink
Their is one thing that will be legit, his 59th vote in the Senate, no matter what they say or do they will not be able to take that away when he is finally seated, and he will be seated.
March 17, 2009 2:00 PM | Reply | Permalink
By the way the Supreme Court won't take this case--too political--they were accused of that one time with Bush v. Gore, they don't want to touch this case.
March 17, 2009 2:03 PM | Reply | Permalink
Remember in Bush vs. Gore, it was Bush with the most votes, the Court provided equal protection for the so call will of the people and for Bush.
This time Frankin and his voters would need equal protection to maintain the rule of the people which gives him the most votes. I don't think the Supreme Court would want to go there.
March 17, 2009 2:10 PM | Reply | Permalink
Unless the Supreme Court rules that the entire recount process (remember that Coleman won the original count) violated equal protection. Which could happen.
And what's to say Spineless Harry Reid wouldn't back down in the face of another filibuster threat?
Couldn't Pawlenty's Secretary of State also refuse to certify Franken as the winner?
March 17, 2009 10:00 PM | Reply | Permalink
Actually, the amount of times Reid has trotted out the argument that the reason for his caving to republican threats of filibuster is because Franken has yet to be seated, it would make him look all that much weaker if he were to cave into repub filibuster threats that Franken not be seated because the election wasn't legitimate.
March 17, 2009 11:28 PM | Reply | Permalink
Republicans are smart enough to know that they can't win this one--I think it is all about puting on a good face with the base.
March 17, 2009 2:15 PM | Reply | Permalink
Just as long as Minnesota sticks to its guns and issues a certification to Franken after their Supreme Court finally rules against Coleman, and just as long as Harry Reid sticks to his guns and SEATS Franken, I don't give a rat's a$$ what SCOTUS has to say about it.
March 17, 2009 2:45 PM | Reply | Permalink
The Republicans cannot devote too much time to the Minnesota race. They are busy crafting their budget, their solutions to the economic mess, their positive ideas to lead America into the 21st Century...
Yeah, right.
March 17, 2009 2:47 PM | Reply | Permalink
I would love to see this go all the way to the Supreme Court. Let another partisan, split decision come out of that court and you will see Republicans run out on a rail in 2010!
March 17, 2009 3:27 PM | Reply | Permalink
A few weeks ago I made this call:
Franken gets seated.
SCOTUS oversteps and rules Coleman won the election.
Country goes nuts.
Congress discovers its spine.
Five justices impeached.
Obama appoints five liberals.
Coleman gets indicted, convicted, jailed.
Special Election - Franken wins in a landslide.
Republicans get wiped out in 2010; Bachmann only remaining House member (that pact with the devil).
You all should have realized Al is a genetic freak. A funny Minnesota politician? C'mon! He has yet to reveal the extent of his superpowers. Bwaaahaaahaaa!
March 17, 2009 4:32 PM | Reply | Permalink
"..."Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." In plain English, the five Supreme Court Justices declared that their ruling was not to be taken as a precedent for interpreting the law in the future. We may well find out just how binding that statement was..."
Unless of course it involves another republican...then it's ok. What nonsense! The SC's decision was illegal and even they knew it so they decided it would be a one time deal never to be mentioned or referred to again. It was the installation of a coup by judges compromised by their involvement with the Bush campaign. It was not justifiable at the time and certainly cannot be justified now or in any other case.
Coleman's desperation is disgusting. Unbecoming a Senator, and his overwhelming blunder with the credit card info on line should disqualify him.
March 17, 2009 3:47 PM | Reply | Permalink
Why don't we let the Supreme Court select all of our elected officials? It seems much more democratic, I mean Republican.
March 17, 2009 4:17 PM | Reply | Permalink
The ECC and MNSC have been very careful to rebut equal protection issues with each decision. Their reasoning has been sound and carefully constructed with each decision to close/slam that door. MNSC has declared itself as the court of jurisdiction. For these reasons I think this won't get to the federal courts.
March 17, 2009 8:18 PM | Reply | Permalink