Minnesota Court: Franken Won The Election
As you've probably heard, the Minnesota election court has just handed down their very much-awaited ruling: That Al Franken was the rightful winner of the most votes in the 2008 Senate election, and he is entitled to receive the certificate of election.
To make a long story short, the court -- who, by the way, are a rare tri-partisan selection of judges -- rejects pretty much every single argument that Team Coleman put forward, and either accepts all of Team Franken's arguments as is or in a somewhat modified form.
So where do we go from here?
Now remember, this is not the end. The Coleman campaign has already announced its intention to appeal, which means this thing will be going next to the Supreme Court, and a certificate of election can't issue until at least after the state Supreme Court rules (and the Coleman camp has already signaled that they'll work to stop one from issuing after the state Supremes rule).
The appeals will be based on these two claims, for starters, and how the court dealt with them:
Rejected Absentees, And The 14th Amendment
The Coleman campaign has argued that thousands more rejected absentee ballots from their campaign's list should have been declared valid and counted. Coleman's lawyers have contended that the court's requirement of strict legal standards to admit ballots is a violation of the 14th Amendment's guarantee of due process, due to the way counties were lenient in various ways when it came to certain requirements, and in turn that the variation in the counties' leniency amounted to to a violation of equal protection.
Here the court plays a fun trick: Since Team Coleman spent so much time citing Bush v. Gore, the court quotes that (in)famous decision's declaration that it was limited only to that case. That is, the 2000 Supreme Court essentially declared that their decision wasn't a far-reaching precedent, and this court applies that in a straightforward manner here, citing the different circumstances of Minnesota.
Possible Double-Counted Votes
The Coleman camp has contended that Franken benefitted by anywhere from 60 to over 100 votes due to double-counted absentee ballots, stemming from human errors on Election Night in labeling duplicates of damaged original absentees. But here the court really lets Coleman have it: His campaign drew up the procedures used to count these ballots, insisted on strict adherence even when problems became apparent, and did not object to them until it was far too late.
And the court notes that other explanations exist for possible double-counting -- for example, a precinct where accepted absentee ballots weren't marked on the rosters on Election Night. And since Coleman failed to present clear evidence that double-counts actually occurred, that means he can't get the relief he wants -- to chop votes off of Franken's totals.
You might be forgiven for thinking that Minnesota is located in the Arctic Circle -- after all, the Election Night is now five months long, going on six.
Josh
Matt
Eric
Brian
I'm not sure if the SCOTUS is even willing to take up this case after the 2000 fiasco, but then again there are four nutjobs there and one unreliable vote... we'll see.
When this thing is really over and we finally see Senator Franken, I'll be happy for him, for us, and for you, Eric. You've been doing a fantastic job following this.
April 13, 2009 9:25 PM | Reply | Permalink
Once Franken is seated, all reason for appeal goes out the window. That's the only game in town. The actual legal basis is crap.
April 13, 2009 11:57 PM | Reply | Permalink
Bingo! Which is why the MN Secy of State has to put that certificate in front of Gov Pawlenty ASAP and confront him into signing it. Let Pawlenty show himself as standing athwart the lawful processes of good government (and, oh yeah, the will of the people).
Then, when that's done, Sen. Reid needs to grow a pair (I know, I know) and ram the appointment through post haste, seating Franken before the wing-nuts can rip their talking points out of the FAX machine. This is now a fait accompli...ENOUGH IS ENOUGH!
April 14, 2009 3:00 AM | Reply | Permalink
"Let Pawlenty show himself as standing athwart the lawful processes of good government..."
That (R) you left out, you know the one that goes behind the name "Pawlenty" is the fulcrum he teeters and totters upon.
If they (R) capable of fixing a national Presidential election via a sell-out Supreme Court, one might assume getting a single (R) Goob to deal from that old IOKIYAR deck would come easy for them.
The question is whether or not the public is ready to say no this time around. If there had been more protests (riots?) in the streets as the 2000 election was being stolen, the judges may have been more deliberate in their deliberations.
This court ruling SHOULD be the final word.
You are quite correct, evbay, ENOUGH IS ENOUGH!
If this goes any further, it would behoove the fine citizens of Minnesota to remember their Non-Partisan League roots and arrange for some serious demonstrations as their own courts discuss the matter.
April 14, 2009 9:51 AM | Reply | Permalink
Although I hate Coleman's guts with a passion, I think an appeal to the MN Supreme Court is a logical next move.
THAT however should be the last move before a certificate of election is mandated.
Franken should at least be seated provisionally at that point, as has historically happened, even if Coleman IS granted cert by the SCOTUS.
What I would love to see is the Senate giving the finger to SCOTUS if they SHOULD rule again on 14th amendment grounds.
April 14, 2009 12:16 PM | Reply | Permalink
One more step down the road leading to Franken being seated.
Eric (or anyone), what are your thoughts about the likelihood of this going to the federal courts? That is the possibility which truly concerns me, in terms of delay.
April 13, 2009 9:29 PM | Reply | Permalink
It was really cool to see Sen. Franken name-drop "The Uptake" as well. They have done an amazing job giving live access during this whole thing, and to have a (soon) US Senator thank an independent-journalism/blog like that is very cool.
Places like TPM, The Uptake, and NarcoNews...thank god you all do what you do.
April 13, 2009 9:32 PM | Reply | Permalink
My take: the MN election court bent over backwards for Coleman at each step of the process and the final judgement is written with great care. Bluntly, any attempts by Coleman to go into the Federal courts will be summarily rebuffed. The a-hole lost, period. He certainly has not Federal claim rising from his own errors. While Eric correctly outlines the "possibilities" as to appeals, each is baseless and probably frivolous.
While there has been much discussion today as to which MN Supreme Court justices will actually here the case, the probability of recusals is rather small. Frankly, I suspect there will be unanimous decision against Coleman. There is nothing to suggest that this court is tainted by partisanship. Campaign contributions make for a bad indicator thereof, especially in MN.
April 13, 2009 9:36 PM | Reply | Permalink
Thanks Merlot.
If the Coleman camp gets a federal judge to issue a stay on granting the election certificate - what would they base that on? What federal court action would the stay call for - the SCOTUS only, or some lesser appellate court?
April 13, 2009 9:54 PM | Reply | Permalink
"So, basically, the strategy is: you get me to lie, because if I don't, everyone goes to jail for perjury?" — Stuart Smalley
It's probably just me but ... when the endless court motions finally end and Al is finally seated, will he turn into another slack-jawed sack of shit like most every other member of the most exclusive Old Boy's club on Earth? After these last five months I suspect he will either be filled with a degree of fearlessness or be instilled with much caution.
It'd sure be nice to have another progessive in the Senate.
Go Stormy! http://draftstormy.com/
April 13, 2009 10:18 PM | Reply | Permalink
I have long felt that the reason the Dems were so lackluster in their support of Frnaken was because he would be a progressive voice, and thus a thorn in the side of many a Schumer-type Dem.
That, combined, with his celebrity, could give him a platform to loudly challenge his party from the left, and the Dem Party as it's presently constituted likes its progressive wing to just shut up and not make waves.
April 13, 2009 11:18 PM | Reply | Permalink
Jeez, you guys think you could quit jerking each other off for 5 minutes? We're in the middle of the biggest blueshift since the Great Society and all you asshats can think of is how to shit on us?
We're going to pass a whole hell of a lot of the progressive platform, while we push overall public opinion sharply left. And we're going to do it without pissing off the moderates who put us here. It's a big tent party. Live with it.
April 14, 2009 12:05 AM | Reply | Permalink
Their points are completely valid. While there has been a big shift to the left in the electorate and some on policy but there remains a lot to be accomplished.
We had an opportunity to vote in support of tax cuts, increased military spending, escalating wars, abuse of executive power and continued detention of prisoners without the rule of law. If I remember correctly, the majority of us voted against those ideas and yet many of them are continuing to be translated into policy and law.
It's great that we have a president that isn't a douche bag. It's great that we have an overwhelmingly Democratic congress. But if those things don't translate into the types of policy changes that we elected them to create then we need to either elect people who will make those changes or acknowledge that out democracy (err, republic) is a sham which exists to support corporate interests. I for one am staying naive on this point.
I want a big tent party like I want a venereal disease. I don't want a party that pretends to be all things to all people, I want a party that reflects my views, my goals, my ideals. If the democratic party can't get the results that I want (and won't even try) then I want a new party. And if that translates to republican wins, so be it. It may just be that the political options are between a party that ruins the country quickly and one that takes longer and at least when it happens quickly people take notice and the electorate responds (well, maybe not right away but after 6 years they start wising up).
April 14, 2009 9:27 AM | Reply | Permalink
Well said. Thanks.
April 14, 2009 1:58 PM | Reply | Permalink
This is BAD NEWS for the 2014 election cycle. After all this mess, Franken will be a damaged goods for reelection. A loss in MN in 2014 would be a stumble for the Dem presidential candidate in the '16 election cycle, especially with other close-fought campaigns in GOP-leaning states, like Begich in AK or Landrieu in LA (if she runs again).
April 13, 2009 10:36 PM | Reply | Permalink
So, you'd rather have Coleman win?
Five years from now this will have less than no legs. Don't worry, be happy.
April 14, 2009 12:07 AM | Reply | Permalink
THIS IS GREAT NEWZ... FOR MCCAIN!!
April 14, 2009 7:53 AM | Reply | Permalink
Huh?
I can't wait for McCain to tell Franken to f himself and see what he gets in return.
April 14, 2009 12:19 PM | Reply | Permalink
Thank you for sharing with us your view five-and-one-half years hence, cracked though your crystal ball may be.
Do you also look upon the world as being but one-third full, because oceans and seas comprise two-thirds of the earth's surface?
Please, be happy for Al Franken. He's officially the Sen.-elect from Minnesota. He's certainly not "damaged goods" in anyone's eyes, save of:
(a) The ultra-right wingbats who've long found completely unacceptable even the thought of an articulate Democratic comedian in the United States Senate; and
(b) Those people who are foolish enough to still listen to those ultra-right wingbats, especially in the wake of all the meticulously well-documented damage and subsequent grief they've caused our country.
April 14, 2009 12:16 AM | Reply | Permalink
Wrecktum - You are crazy. Although the media often goes out of its way to paint Dems in a bad light, as you are doing here, there is a stronger public majority supporting the Dems (and, more importantly on a lot of different levels, rejecting the GOP) now than at any time since 1987, before LBJ escalated the Vietnam War. This election challenge has made Coleman damaged goods -- think Ellen Saurbrey in Maryland, who destroyed her career by mounting a long and expensive election challenge to a public that stopped caring two days after the election counts were made official -- and has helped reinforce Franken's image as a decent guy who cares about Minnesota and Minnesotans, and also highlight the absurd extremes of right wing Franken-hatred (which is as virulent as any form of right wing Dem hatred I have seen, including hatred of Reid and Pelosi, the long standing targets of wingnut Congressional derision, and, of course, that raving socialist Obama, who is finally making wingnut heads explode by raising taxes on the rich back to where they were when that other raving Socialist, Ronald Reagan, set the tax rates while implementing masive increases in federal spending on defense, thereby exploding federal deficits to all time highs).
The Dems will have a minimum of 63 Senate seats at the midterm, even if Dodd runs and loses (which he won't IMHO). And they will pick up 5-10 seats in the House, which is almost unprecedented in a midterm election (after two consecutive elections in which a party picked up 20-30 seats). Franken will be seated soon. And Obama will be re-elected in a landslide.
Obama is a quite obviously a very talented leader and an excellent President so far, and the contrast with Bush and the dark underlord Cheney could not be greater. It is no accident that Obama enjoys 65% approval ratings even now, after all of the crap he inherited (and the corporate media distortions of why things are so farked up right now). GOP obstructionism is pissing off the mainstream moderate voter, who unlike Rush, wants Obama to succeed and doesn't mind seeing rich lawyers and corporate executives pay a little more in income taxes. The only people who dislike Obama are the 35% who are the hard right wing of the GOP -- anti-tax anti-government nuts, right wing religious conservatives, and Chicago School, unregulated market. anti-government economic zealots, who put us in this economic quicksand in the first place.
If you think Franken's successful defense of the MN electoral system against the scorched earth maneuvers of a GOP opponent (whose challenge has been well funded by national right wing interests) hurts Al Franken in MN, think again. Quiet the opposite.
April 14, 2009 5:11 AM | Reply | Permalink
This is really funny. Talk about make believe.
April 14, 2009 5:55 PM | Reply | Permalink
That must be the dumbest comment on the internet.
You're right! Franken might lose in 2014, so we should give up the seat he rightfully won now! Brilliant! Get this guy the reins to the DNC!
April 14, 2009 7:51 AM | Reply | Permalink
Franken will be judged on how he serves. If he's another Jesse Ventura, he'll get one term. If he follows the example of Paul Wellstone and Russ Fiengold, he'll be there for life.
I've read his books and listened to his show; his critics never bothered. I'm betting he'll serve a long, long time.
April 14, 2009 3:47 PM | Reply | Permalink
Great job covering this Eric. (I was sorry to see that after all your work, the original story saying "Franken Declared Winner" didn't have your byline.
Anyway, having just completed reading the Order, here are a few nuances:
Not only did the court say Bush v. Gore didn't apply because SCOTUS said it wouldn't apply, but they went one step further and showed that didn't apply on the merits. In Bush v. Gore, the majority relied on the inherent problems and ambiguities in the Florida law calling for the election officials to determine the "voter's intent" (as it applied to dimples and hanging chads. Minnesota's law is exactly the remedy SCOTUS was calling for; MN has a very structured, quantitative procedure for determining whether an absentee ballot should be counted. The MN court said nothing more than each party had to prove that an absentee ballot complied with the law before it could be counted. Coleman tried to argue in favor of an ambiguous, subjective determination of voter intent, and that is precisely what Bush v. Gore rejected.
Here are the two quotes from the opinion that best summarize the problems with Coleman's entire presentation:
P. 46 Although Contestants [Coleman] argued that approximately 4,800 absentee ballots were wrongfully rejected, the Court only received evidence regarding the registration status of approximately 980 voters. Of these, approximately 300 voters failed to update their registration, leaving the Court with evidence of proper registration for fewer than 700 voters.
P.54, Quoting Bennett v. Mollis: A mere mathematical possibility, as opposed to solid probability, that an error affected the results is insufficient to disturb and outcome.
April 13, 2009 10:41 PM | Reply | Permalink
One would think if Coleman's attorneys were claiming over 4000 ballets were wrongfully rejected they would at least know they had to demonstrate why each ballot should be reconsidered using current laws regarding ballots. Too bad the court didn't include a reprimand to Coleman's attorneys castigating them for appearing in front of the court thinking they were on a fishing trip.
April 14, 2009 8:33 AM | Reply | Permalink
This is very good news for Coleman.
April 13, 2009 11:27 PM | Reply | Permalink
And the Republicans, too! Now they can finally put into motion their super-duper-secret plan to rule the world.
April 14, 2009 12:20 AM | Reply | Permalink
Huh?
April 14, 2009 8:25 AM | Reply | Permalink
After reading through the entire judgement, I wonder where Coleman thinks he has grounds for appeal? They've effectively rebutted every one of his arguments. It's like he thinks he can come up with a whole new set of arguments because the old ones didn't work, or...something.
I don't think higher courts get a thrill out of overriding lower courts in any case, absent any gross abuse(s) of power, and it's pretty apparent there weren't any in this case.
April 14, 2009 4:26 AM | Reply | Permalink
If I'm not mistaken, in order to appeal he has to show where the court failed to follow or misinterpret state election laws and legal precedent of some type or other. Sounds like the court went out of their way to make doubly sure all the i's were dotted and t's were crossed.
April 14, 2009 8:40 AM | Reply | Permalink
Well, the big fear is that the SCOTUS will give legitimacy to Coleman's equal protection claims. That is a constitutional violation that would allow a federal court to overturn the MN court's rulings.
While such a ruling would result in overturning any election where there were minor variations in how votes were counted district-by-district, the Repub;ican justices could probaly just state that this ruling applied only to the Franken/Coleman controversy.
Hell, to make it easier, maybe they could just rule that equal protection challenges to an otherwise valid election can only be considered if brought by a losing Republican.
April 14, 2009 11:32 AM | Reply | Permalink
The court cited the volume of evidence not to impress us, but to warn the MN S.Ct. that they DON'T want to wade into the swamp. The court also went out to extra length to offer multiple reasons, and reasons on reasons, why Coleman lost. All of that makes it easier for the MN S.Ct. to take a very careful look at the opinion, and a very cursory look at any arguments Coleman makes on appeal, and affirm the decision without comment.
As to the question whether the MN S.Ct. will take the case - they have to. An appeal from this court is mandatory, and goes directly to the MN S.Ct.
As to SCOTUS, as I've said before, the majority had everything to gain politically by anointing Bush, regardless of how far they had to go in trampling precedent. But with this case, they have nothing to gain and a lot to lose. Overriding the decision doesn't shift the balance of power in the WH or Senate, and puts them at the receiving end of the wrath of the legislative and executive branches. Moreover, in case they even consider taking the case, this court made an excellent argument why this case is diametrically opposed to Bush v. Gore, and if they take it they will make themselves look like fools.
April 14, 2009 12:27 PM | Reply | Permalink
The only reason you give that the SCOTUS won't take the case is that they have very little to gain by it. These political crusaders masquerading as justices (Scalia, Roberts, Alito and Thomas) don't give a fig about precedent, legal rationales, or fundamental common sense. all that matters os the correct outcome.
As you suggest, they may be sufficiently convinced that overturning this election would not be worth the criticism they would receive. No claims on their conscience would prevent them from overturning a valid Democratic electoral win otherwise.
April 14, 2009 2:54 PM | Reply | Permalink
Coleman and company seem to be rushing toward the shrinking rabbit hole that Alice fell through. If he makes it, Coleman will land in this strange land where logic and reason do not exist, where an alternate reality rules, where his appeals make sense to the loony inhabitants down there. Up here, in the light of day, Al Franken is our lawfully elected senator, and courts actually rule on real evidence, not made up imaginary stuff. Let the Minnesota Supreme Court review and rule in our real world. Good luck down there, Norm.
April 14, 2009 8:24 AM | Reply | Permalink
Eric, what is the basis for your saying that no certificate of election can be issued until the State Supreme Court rules? The last conclusion of the court (item #157 on p 26 of the pdf) states that Franken should receive the certificate.
Thanks.
April 14, 2009 8:38 AM | Reply | Permalink
What makes everyone think that the MN SC will even hear the case? It may be such a slam dunk, the appeal may be denied. I'd say such an outcome in the next few days is > 50-50.
Case closed.
April 14, 2009 8:53 AM | Reply | Permalink
I am no lawyer, but I agree that the MN Supremes may refuse to hear the case. If it as air-tight and specifically written as some posters here say it is after reviewing it, then I agree it's a 50-50 bet that the MN SC will just say the appeal has no merit. Case closed, indeed, and welcome to the US Senate, Senator Franken.
April 14, 2009 12:16 PM | Reply | Permalink
1) MN S.CT. has to hear an appeal, if filed. 1st level appeal is mandatory, and MN election law says it goes straight to MN S.CT. They don't have to spend a lot of time on it, though.
2) MN law says certificate is issued when appeal process is completed. There is a reasonable interpretation that this means it is completed when Mn. S.CT. rules, without having to wait for appeal to SCOTUS. Even better argument that a challenge in Fed. D.CT. is a collateral attack and not part of the appeal, so certificate should not be held up if Coleman goes that route.
April 14, 2009 12:33 PM | Reply | Permalink
Senate Democrats should seat Franken after the state SC acts & it moves to certification. Send a clear signal this is done & let the RW howl. We need to contact Reid to grow a pair.
April 14, 2009 10:44 AM | Reply | Permalink
This just in...
Ex-senator Norm Coleman's political career is still dead.
April 14, 2009 10:46 AM | Reply | Permalink
LOL. Thanks for the blast from the SNL past.
April 14, 2009 12:22 PM | Reply | Permalink
Don't underestimate the role that Governor Pawlenty will play as the drama continues (and living in Minnesota I assure you this will continue). Given everything Cronyn has said as chair of the Senate Republican Election Committee (or whatever it's called), every attempt will be made to keep Franken out. Whether or not that has to do with the fact he's a 59th vote or that he's Al Franken has never been entirely clear to me.
The thing to remember is that Governor Pawlenty has ambitions for the Big Chair and one has to wonder if this will develop into some kind of conservative litmus test for him with the red-meat types on the right. While important, this doesn't rise to level of Orval Faubus territory, so I wouldn't be surprised to see some measure resistance here, at least to make a point.
April 14, 2009 11:16 AM | Reply | Permalink
Boy did he dance on Rachel last week! Tom cat on a hot tin roof...
Still, I'm wondering if this could be a pivotal time for him if he were to rebuff the RNC/CPAC crowd and act on real principal.
The national Republican Party is self-destructing by pandering to an incredible shrinking constituency, there is no one from the right who has a chance in hell of beating Obama in '12, and the independent voters are looking for some actual independence.
Sort of reminds me of '92 when all the "leading" Democrats thought Poppy Bush was a lock for re-election, and the "moderate" Gov of Arkansas slid to the nomination and actually won.
Not that I want to see Pawlenty elected Pres, but I'm just sayin' his only chance might be to run to the middle and hope the country clubbers can take the GOP back.
April 14, 2009 12:28 PM | Reply | Permalink
Put him to work. Man! No telling what someone with lotza braincells intact can do.
Don't mean like al for pres yet but picture this: al and al gore doing bbq for fun!Yes! For fun!!
Can you do that picture?
April 14, 2009 11:24 AM | Reply | Permalink
Wazzup with comment postings? They are all out of chronological sequence (at least on my screen).
April 14, 2009 12:11 PM | Reply | Permalink
Never mind. I closed and re-opened the browser and they are in correct order. Weird.
April 14, 2009 12:15 PM | Reply | Permalink
Thank god! I was afraid you (or Sherman) hit the wrong button on the Way-Back Machine. There's no telling what kind of damage that could cause to the Space-Time Continuum.
April 14, 2009 1:57 PM | Reply | Permalink