With Votes Counted, Franken Now Leads By 312 Votes
Minnesota has just finished counting the 351 previously-rejected ballots approved by the three-judge panel as having been legally cast and rejected in error. The numbers: Al Franken 198, Norm Coleman 111, Other 42.
This means that Al Franken's lead has increased from the 225 he had going into today, up to 312 votes out of roughly 2.9 million. We still need to wait for the judges to rule on the remaining issues, but the vote-counting during the election contest-proper is done.
The only way for Coleman to overcome this lead would be to win an appeal against the election court's prior rulings in favor of strict standards to let in new ballots, or to somehow win his much more far-fetched proposal to retroactively declare a number of absentee votes illegal and deduct them from the totals based on countywide averages. The first one is more likely in terms of feasibility, and even that's a long shot, leaving the Coleman camp at their other proposal to "set aside" the election result entirely.
So at this point Coleman is left to appeal to get more votes put in from his campaign's list, under more lenient standards and a lower burden of proof -- the court rejected many of his submissions on the grounds that his legal team had failed to provide sufficient evidence -- and to prevent Franken from succeeding at this same game.
But other potential avenues of appeal -- the missing 133 ballots from the recount, which gave Franken a net +46 from the Election Night returns, or Coleman's claim that Franken gained about 100 votes from accidental double-counting of absentee ballots -- simply aren't enough, and they weren't enough before today, either.
For now, Franken won't be able to get a certificate of election. The court has to hand down a ruling, perhaps in the next week or two, declaring a winner in the race. And then a certificate can't be issued until at least after the state Supreme Court rules on the likely appeal. And then the question becomes whether GOP Gov. Tim Pawlenty will issue a certificate, whether the state Supremes will order it, or a federal court would issue an injunction against it, etc.
Whatever form Coleman's litigation takes from here, expect the appeal to happen in some form in state and/or federal courts, and for the Senate GOP to fight any effort by Franken to be seated.
Josh
Matt
Eric
This is ridiculous. So how long for the MN SSC to rule? I just heard Ginsberg say that is a go.
April 7, 2009 1:20 PM | Reply | Permalink
Coleman plans to take this all the way to the Supreme Court of the United States in hopes Roberts, Scalia, Alito, Thomas and Kennedy give him the win, or at least epically drag their feet to keep Franken out as long as possible.
April 7, 2009 1:25 PM | Reply | Permalink
The Rubber Stamp team might just do that.
April 7, 2009 3:25 PM | Reply | Permalink
Of course NOTHING is impossible, but there is a difference between the presidency and the senator from Minnesota. The distaste of even the conservative justices in BvG was evident by their holding that their decision was NOT to be used as precedent.
I think they will deny cert. But Coleman's path to the Supreme Court will be interesting. If he goes directly from the Minnesota Supreme Court, I think he's dead as swiftly as they can deny cert.
But if he trumps up a federal cause (a la equal protection) he goes through lower federal courts: probably a three-judge panel at the district level which can be appealed directly to the Supremes.
That's the wrinkle, I think. What are the federal judges like in Minnesota? Although the Supremes SAID BvG should not be used as precedent, that hasn't stopped it for being used as such by lower courts. IF Normy gets a favorable ruling from a three-judge panel, or from a rehearing by the entire circuit en banc, then the Supremes would have a tougher time denying cert.
This makes it all the more important that Franken get seated provisionally, but that would require that Harry Reid have some balls, and I think we all agree he was gelded.
So stay tuned.
April 7, 2009 11:24 PM | Reply | Permalink
Does the State Supreme Court have to accept an appeal (or is it like the situation with the US Supremes and many other state high courts that the court only decides what cases it will hear)?
April 7, 2009 1:25 PM | Reply | Permalink
The court was already tarnished by its wading itno politics with Bush v Gore. Will they want to try again? I wonder.
April 7, 2009 1:33 PM | Reply | Permalink
John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas are 4 reasons why SCOTUS will hear this case. Where Anthony Kennedy goes in the decision will determine who is the next Senator from MN.
April 7, 2009 1:41 PM | Reply | Permalink
Doubtful. Article 1, Section 5:
"Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members..."
The best they could do would be block it in the Senate - and they would have to filibuster the appointment of a elected member.
Do they really want to set that precedent?
April 7, 2009 1:45 PM | Reply | Permalink
That shouldn't stop them. After all in Bush v. Gore they knew they were doing the wrong thing and did it anyway. They admitted as such when they wrote "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
April 7, 2009 1:53 PM | Reply | Permalink
Yes but in Bush v. Gore they felt they had the standing to rule on the case. This is a different situation. I doubt they'd want to take it up.
April 7, 2009 2:42 PM | Reply | Permalink
All this fear mongering is ridiculous. MN has maintained the process and will continue to do so. Ultimately Pawlenty will be given no choice and have to sign the certificate. The SCOTUS will not have a to see since the Constitution, yes the strict constructionists have long held precedence that each body is the ultimate determiner of who is elected. Then if it is seen that the Senate is now spiteful it will cost them more in the off presidential election period.
Franken will be seated in late May.
April 7, 2009 5:32 PM | Reply | Permalink
Who knows. I think it would be great if they flat out rejected even hearing the case. At that point, it would be MN law to give Franken the certificate since MN courts have made a decision. I believe the certificate can be issued even if the case continues onto the Supreme Court. Correct me if I'm wrong.
April 7, 2009 1:34 PM | Reply | Permalink
Moot point. There is zero probability they would refuse to hear the appeal.
April 7, 2009 1:36 PM | Reply | Permalink
The statute indicates the rules for appeal. It must be brought within ten days, and it goes right to the Supreme Court instead of to the Court of Appeals. Ordinarily, review by the Supreme Court is discretionary, but not in this case.
April 7, 2009 3:21 PM | Reply | Permalink
Thanks for the information. I assume the Supreme Court will set it for expedited hearing but that will still mean 45 days at the very least until there is a decision (two weeks to file an opening brief, one week to file a response, another week to reply, oral argument and then a decision).
April 7, 2009 4:31 PM | Reply | Permalink
If the federal Supreme Court were to rule against Franken, can the Senate overrule the Supreme Court ruling?
The Constitution specifically states "Each house shall be the judge of the elections returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business." That would suggest to me that the Supreme Court does not have final Constitutional authority in this issue. The use of the verb "shall" would seem to me to make that reasoning mandatory. There is no wiggle room.
Also, the conjunction of the phrase "...a majority of each shall constitute a quorum to do business." (italics added) in the same sentence with the idea that each house is the ultimate authority on its own membership would suggest to me that a filibuster would not be Constitutional in this issue, although that may not be as strong an argument as the one that the Senate can override a supreme court decision in this matter. The fact that both are in the same sentence connected with the word "and)does seem to connect the two ideas, however. That reasoning seems to me similar to the reasoning in the 1937 Miller second amendment ruling that interpreted gun ownership rights as going along with belonging to a militia.
Just a couple of thoughts from a layman who keeps a copy of the Constitution close to the computer. What do the lawyers have to say?
April 7, 2009 6:17 PM | Reply | Permalink
The only way for Coleman to overcome this lead would be to win an appeal against the election court's prior rulings in favor of strict standards to let in new ballots
Of course given every time they count ballots in a more expansive fashion Franken's totals go up, maybe this is only a hope in the sense that it's an avenue for more delay...
April 7, 2009 1:44 PM | Reply | Permalink
I don't think that the order will take long to issue -- perhaps in the next couple of days. Also, I am not sure that the judges will make express findings on the other issues (i.e., missing ballots and alleged double counting). The statute provides that the only issue before the Election Court is "which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election. The judge trying the proceedings shall make findings of fact and conclusions of law upon that question." MN Stat. 209.12.
With regard to other issues, including "deliberate, serious, and material violation of the provisions of the Minnesota Election Law", the Court must take evidence, which will be forwarded to the Senate, but "the judge shall make no findings or conclusion on those points." MN Stat. 209.12.
Given their approach so far, I think that they will follow the letter of the statute in every respect.
April 7, 2009 1:46 PM | Reply | Permalink
I agree with you. They may well just say, "Franken got the highest number of legally cast votes." And that's it. A lot of people don't seem to be aware of the wording of the statute.
April 7, 2009 3:26 PM | Reply | Permalink
Coleman has Franken RIGHT WHERE HE WANTS HIM!!!
(I kinda miss the political season)
April 7, 2009 1:46 PM | Reply | Permalink
...out of office?
I guess you're actually right
April 7, 2009 1:49 PM | Reply | Permalink
Do you mean...
THIS IS EXCELLENT NEWS!! FOR COLEMAN!!!
April 7, 2009 1:51 PM | Reply | Permalink
Is it possible for this to drag on for six years?
April 7, 2009 1:46 PM | Reply | Permalink
Kleefeld's recession proof
April 7, 2009 1:49 PM | Reply | Permalink
. . . and that's so important in these economic times. Does Eric owe Norm a note of thanks?
April 7, 2009 2:00 PM | Reply | Permalink
Are there any Scalia, Roberts, Alito, Thomas types on the Minnesota Supreme Court?
If so, this is where Ginsberg is heading.
April 7, 2009 1:56 PM | Reply | Permalink
No. It is a balanced, non-partisan court. It does have a former Minnesota Viking on it, though. (Alan Page)
April 7, 2009 3:31 PM | Reply | Permalink
Actually.....
I believe MN Election law states that a certificate MUST BE ISSUED within 45 days once an election has been certified. And the election will be certified this week.
The governor CANNOT withhold a certificate once the results are officially certified. If they could, ANY governor could hold up an elected member of the opposition party whenever they wished.
Pawlenty will have NO CHOICE once the certification is final and the results made official.
Of course, the Sentate can seat Franken whenever they like once the results are official. They do NOT have to wait for certification. He can be seated provisionally.
April 7, 2009 1:59 PM | Reply | Permalink
No, it seems to say (from what someone else has posted here) that you get a certification only after the time to appeal to the Minnesota Supreme Court has lapsed or, if an appeal has been filed, after the Supreme's final decision. That means we are at least 60 days away from certification and maybe a few months longer.
April 7, 2009 4:33 PM | Reply | Permalink
It's time for Coleman to take the high road and concede.
April 7, 2009 2:00 PM | Reply | Permalink
April 7, 2009 2:08 PM | Reply | Permalink
He did take the high road, and said that a long drawn-out recount battle was in noone's best interests and that the losing candidate should concede sooner rather than later.
Oh right, that's when he was leading. High-minded principles go out the window when you're behind.
April 7, 2009 2:43 PM | Reply | Permalink
They should put in all of the votes Coleman wants counted.
Then Franken could winn by 500 votes.
April 7, 2009 2:45 PM | Reply | Permalink
The court has to hand down a ruling, perhaps in the next week or two, declaring a winner in the race. And then a certificate can't be issued until at least after the state Supreme Court rules on the likely appeal.
Are you sure about this Eric? I've not read the MN statute but absent it expressly saying that no certificate can be issued until all appeals are exhausted, I would think the election can (must?) be certified after the trial court rules unless and until an appellate court issues a stay.
And while Coleman would likely have an appeal as of right to the MN Appellate court, that doesn't mean the MN SC has to hear it.
Perhaps the Gov can refuse to certify until such time as appeals are exhausted but I find it hard to believe that everything is automatically stayed until all state court appeals are exhausted.
The MN GOP at this point must be facing serious public backlash, no?
April 7, 2009 3:01 PM | Reply | Permalink
Team Coleman will take this all the way to the Supreme Court. The SC will hear the case and rule in favor of Coleman based on the initial results of the election, before the Contest.
That's how effed up this country has become.
April 7, 2009 3:05 PM | Reply | Permalink
This would be a ruling for Franken, not Coleman. Franken was the certified winner of the election. People seem to forget that the initial election results (not including the absentee ballots) were close enough that it required a mandatory recount which included absentee ballots. After all ballots were recounted Franken became the certified winner. Coleman was never the election winner, thus his contesting of the results.
April 7, 2009 4:16 PM | Reply | Permalink
The initial count from the November 4 election put Coleman 215 votes ahead of Franken. THE USSC will hold that the recount violated equal protection and that the inital count should prevail.
April 7, 2009 4:51 PM | Reply | Permalink
Nonsense. Pure and simple.
April 7, 2009 10:00 PM | Reply | Permalink
Nonsense? Of course it's nonsense.
So was Bush v. Gore...
April 8, 2009 2:46 AM | Reply | Permalink
That number was never certified and was proven unreliable by the hand recount, where every ballot cast was treated identically.
Coleman's so-called equal protection claim arises from the "unequal" election-day treatment of absentee ballots. Your proposed remedy of reverting to the proven-incorrect pre-recount number doesn't actually remedy the purported equal protection violation. The unequally treated absentee ballots are still in there.
Ergo, it is not a proper remedy and it won't be granted.
April 7, 2009 10:09 PM | Reply | Permalink
I stand corrected. Eric is correct, a proper appeal would stay certification, per MN Stat. 209.12 which says,
Note that there appears to be no requirement that the Gov do anything.April 7, 2009 3:14 PM | Reply | Permalink
No way is SCOTUS going to agree to hear this case. The states have the right to conduct and monitor their own elections and there will be no issue that has not been thoroughly vetted in the Minnesota Courts' effort to assure that fair and even-handed procedures were used. Even Scalia and Thomas can see that the political map has shifted and they will not want to jump into the partisan fray when the only prize is a Senate seat.
April 7, 2009 3:48 PM | Reply | Permalink
I completely agree. As I've said repeatedly, "Right or wrong, but never in doubt!"
SCOTUS had every incentive to anoint Bush because it guaranteed their control of the majority by future appointment, guaranteed administrative rule-making that they would favor, (therefore allowing them to reject challenges without having to hear cases, and thereby reduced their workload) and paid fealty to the ruling powers.
In this case, SCOTUS gains nothing by hearing the case. If they take the case, and rule in Coleman's favor, it does nothing to tip the balance of power in the WH or the Senate, and really would piss off the current ruling party, which can legislatively unravel much that SCOTUS does (e.g. Ledbetter law), and would be expected to do so more frequently if they felt they were facing a hostile SCOTUS. A ruling in Coleman's favor could also push Obama to choosing more liberal or progressive justices, rather than more moderate, well-respected apolitical jurists. And a ruling in Franken's favor does nothing but piss off the right wing and undercut their future speaking fees when they retire. If that's the result they support, they get the same thing by refusing to take the case.
At most they take the case, and issue a very terse ruling that says, without explanation, that the Mn. court followed the Mn. law, and it's their call. Any problems in the procedures are up to the Mn. legislature to fix.
April 7, 2009 4:42 PM | Reply | Permalink
Membership in the Federalist Society, current or past, should be considered as disqualifying for appointment to the position of federal judge at any level as membership in the Communist Party or the KKK is.
April 7, 2009 6:30 PM | Reply | Permalink
Your faith in the judgment of movement conservatives like Scalia, Roberts and Alito exceeds mine. If they can find any plausible rationale and the means to overturn this election, I am certain they will do so.
April 7, 2009 4:53 PM | Reply | Permalink
Roberts is a strong conservative, but he's not an "activist judge" in the way that Scalia, Alito, and Thomas are. He rules on the right (politically, not in the sense of correct) side of things, but he's more of a pragmatist than a megalomaniac trying to change the country, like the others.
April 7, 2009 5:29 PM | Reply | Permalink
I see he's fooled you too.
http://www.slate.com/id/2169344/
April 7, 2009 5:54 PM | Reply | Permalink
I'm going to go out on a limb with my opinion that Scalia would find the idea of SCOTUS revisiting a state election very distasteful. Especially since the court made such an effort to reassure the nation that Bush v Gore would not be precedent. I suspect that even citing the case would be enough to deny cert which I fully expect to happen, and quickly as well. Sen. Klobachar has been complaining about how the vacancy has created a a case backlog and needs help in her office, wondering if Sen. Cornyn would mind if TX give up one senator.
It's not that I think so highly of Scalia, but he would never hear the end of it from the legal community if he were to so blatantly backtrack on his limited view of the Fed role in state matters. As Val Kilmer's Doc Holliday said in Tombstone: "my hypocrisy only goes so far".
April 7, 2009 6:27 PM | Reply | Permalink
You must give it up now Normy.
April 7, 2009 11:10 PM | Reply | Permalink
Can we hear from a representative of the "no more frivolous lawsuits" faction?
April 8, 2009 7:51 AM | Reply | Permalink
Could someone, please, just wave a magic wand, and have Franken seated and actually doing the work of the people of Minnesota.
April 8, 2009 9:15 AM | Reply | Permalink