Senator Al Franken (D-MN) (UPDATED X2)

Minnesota’s State Canvassing Board will make it official today:

The state Canvassing Board was poised to certify the results of the recount in Minnesota’s grueling Senate election in Al Franken’s favor _ but that doesn’t mean the race is definitely over.

The board was to meet Monday and was expected to declare which candidate received the most overall votes from nearly 3 million ballots cast. The latest numbers showed Franken, a Democrat, with a 225-vote lead over Republican Sen. Norm Coleman, who led Franken on election night.

But after the announcement, there will be a seven-day waiting period before an election certificate is completed. If any lawsuits are filed during that waiting period, certification is conditional until the issue is settled in court.

Norm Coleman is going to drag the court battle out as much as possible, since Minnesota law prevents Franken from being officially certified the winner–thus keeping him out of the Senate–until Coleman’s legal challenges are resolved.

I guess I can’t blame Coleman for doing everything possible to win–if the situation were reversed, I’d probably want Franken to do the same. But Coleman knows that it’s unlikely he’ll emerge as the winner, even if the courts rule in his favor.

So while Norm Coleman is doing what’s best for himself and for the Republican Party, maybe he should put those interests aside and do what’s best for the people of Minnesota, who deserve to be represented by their duly-elected Senator.

UPDATE: Here’s the substance of Coleman’s impending lawsuit:

Coleman’s lawyers promised a lawsuit over their claim that some ballots duplicated on election night wound up being counted twice in the recount.

The Coleman campaign also has a petition pending before the state Supreme Court to include 650 ballots that it says were improperly rejected but not forwarded by local officials to St. Paul for counting.

UPDATE II: That was fast:

The Minnesota Supreme Court has rejected Republican Norm Coleman’s request to count an additional 650 rejected absentee ballots in the state’s U.S. Senate recount.

The court’s ruling Monday likely paves the way for the state Canvassing Board to certify results showing Democrat Al Franken won the race. But Coleman’s attorneys have said they are likely to sue if he loses the recount, meaning it could be weeks more before the outcome is final.

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Where’s The Beef?

As expected, Norm Coleman is taking the results of the Minnesota recount to court:

In a brief press conference, Norm Coleman’s campaign lawyers reaffirmed that they will challenge the result in court.

Coleman’s lead lawyer Fritz Knaak said the process in the recount was broken, and today’s events were just further proof of that. “We are prepared to go forward and take whatever legal action is necessary to remedy this artificial lead,” said Knaak.

But what, exactly, is their case? Coleman’s previous allegations about duplicate ballots was thrown out by the Minnesota Supreme Court. Simply alleging that the process is “broken” because your candidate didn’t win isn’t enough.

I’m sure Coleman will come up with some kind of justification for their legal challenges, but the fact that they’re going to court first and finding a reason to second is exceptionally telling.

225

The Minnesota recount is officially over.  The last absentee ballots were counted today.  And, in the end, Democrat Al Franken leads Republican Norm Coleman by 225 votes.

While Coleman will take the results of the recount to court, it will be nearly impossible for him to erase Franken’s margin of victory.  Barring an unexpected judicial upset, Al Franken will be the next Senator from Minnesota; his victory will be certified after Coleman gets his day in court.

And since Congressional inaugurations were today, Norm Coleman is no longer a United States Senator.  The GOP is refusing to let Franken be seated on a provisional basis until the courts have their say, which is fine.  But then Harry Reid shouldn’t allow Coleman to enjoy any more privileges than any other ex-Senator enjoys.

Senator Al Franken (D-MN).  I wonder what Bill O’Reilly thinks about that.

Fumble

In the ongoing Roland Burris saga, I’ve already written that Illinois Secretary of State Jesse White’s will refuse to certify Burris’ appointment, which is required for Burris to take his place in the Senate.

But it’s questionable whether or not White has the legal authority to defy Governor Blagojevich. In all likelihood he doesn’t, and Burris’ will probably take him to court and win his certification.

Unfortunately, Senate Democrats are hitching themselves to White’s gambit and will use Burris’ lack of a certification to keep him from being inaugurated tomorrow:

The first thing the Senate leadership plans to do is to demand, under Rule 2 of the Standing Rules of the Senate, a certificate containing “the name of the person elected or appointed, the date of the certificate, the name of the governor and the secretary of state signing and countersigning the same, and the State from which such Senator is elected or appointed.”

Oh, snap! At Harry Reid’s urging, Illinois Secretary of State Jesse White is refusing to sign such a certificate.  No idea whether White’s refusal to sign is legal or not, but that little technicality should be enough to keep the Democrats from having to seat Burris when he shows up on Tuesday.

This means that, as soon as the courts overturn White’s obstinance, Senate Democrats won’t have any justification for blocking Burris.

Then there’s this:

In a conference call with reporters, [Texas Senator John] Cornyn said Republican Senators fear that Senate Democratic leaders may try to seat Franken next week even if an official winner has not been declared in the election. But the Texan said Republicans are prepared to launch a filibuster to prevent Franken from being seated until state officials declare a winner and all legal challenges are exhausted.

“There will be no way that people on our side of the aisle will agree to seat any Senator provisionally unless a certificate of election has been signed” and all court cases about the Senate race have been completed, Cornyn said.

I wrote this morning that, according to Minnesota’s election law, Minnesota can’t certify a winner in the Senate election until Norm Coleman’s legal challenges are decided in court. In other words, Coleman can prevent Franken from being named the official winner of the election for as long as he can keep his case in the courts. And now Senate Republicans are using the same justification Senate Democrats are using with Burris to block Franken.

Yeah, it’s a mess.

I’ve come to the conclusion that Burris should be seated.  He should be expelled from the Senate as soon as he takes office, but he should be seated. Because seating him is a constitutional question, while expelling him is a political question.

Rod Blagojevich is the Governor of Illinois.  He has all the power and authority of the Governor of Illinois, including the ability to fill vacant Senate seats.  And Roland Burris meets all the constitutional requirements to be a United States Senator. The Supreme Court ruled in Powell v. McCormack that the Senate can’t keep someone from taking office if they’re constitutionally eligible, which Burris is.

But like I said, expulsion is a political question–the Senate can expel any member for any reason.  And in this case, Burris certainly should be expelled;  he was appointed to the seat Blagojevich was trying to sell to the highest bidder.  His appointment raises questions as to whether or not Burris struck some sort of deal with the Governor. There’s no evidence he did but, considering the nature of the Blagojevich scandal, Burris should have anticipated that he would get dragged into this by virtue of his acceptance.

Where does that leave things? In poor shape, unfortunately.  If the courts compel White to certify Burris, the Senate will have to seat him.  Expulsion could be the next step, but Senate Democrats would look bad for trying to do an end-run around the constitution and they’ll look like failures when Burris is inaugurated despite all of their efforts.  And now they’ve backed themselves into a corner with Franken, meaning that the Senate now has no good justification to seat Franken until Coleman has his days–or weeks, or months–in court.

All in all, Senate Democrats bungled the Burris issue from the start, and now they’ve left themselves open to criticism from a lot of places. I’m not really sure where they can go from here–hopefully they can think of something I haven’t.  Because, to me, this looks like a pretty big fumble, unfortunately.

If At First You Don’t Succeed…

Sue, sue, sue,:

Al Franken could be declared the winner of the Minnesota recount as soon as Monday, but due to the peculiarities of Minnesota election law, Sen. Norm Coleman (R-MN) could keep the seat bottled up in the courts for weeks or even months before a decisive resolution to the race, making it harder for the Democratic majority in the Senate to seat Franken on even a provisional basis.

Assuming Franken emerges as the recount winner at Monday’s meeting of the state canvassing board, what happens next?

The Coleman campaign has publicly guaranteed that they will file an election contest, challenging the result in court. That would be a key development because Minnesota law actually prevents the issuing of a certificate of election to the winner until a contest proceeding is settled (unlike other states that will certify a win, and then allow the loser to pursue legal challenges if they want).

The bottom line here is that even if Coleman ultimately loses the recount plus the formal court contest, he could be able to drag out the seating of Franken for quite some time, well beyond next week’s swearing of the 111th Congress.

[…]

[D]oes Coleman have a realistic chance of winning an election contest? Probably not.

The Coleman campaign would pursue this on a few legal questions they’ve been setting up: The allegation that some absentee ballots for Franken in 25 selected precincts were double-counted; a selective counting of wrongly-rejected absentee ballots out of a statewide pool that is believed to favor Franken overall; and the Coleman campaign’s latest attacks that the state election officials are in the tank for Franken.

All of these are long shots to various extents, and in order to win Coleman would need to sweep every last argument, denying Franken a favorable resolution on any single thing. That is highly unlikely to happen. But it sure could take a while to sort everything out.

[Emphasis mine]

There are a number of ways Coleman benefits from dragging this out.  First, while it’s unlikely he’ll pull out a win, it’s still possible he could end up with more votes than Franken once the courts weigh in.  His strategy is the legal version of throwing everything against the wall and seeing what sticks.

Second, the longer Coleman drags the election out, the longer the Democratic caucus goes without their 59th member.  With a number of contentious votes to come up early in the 111th Congress, Franken’s absence will make it that much easier for the GOP to keep the Democrats from passing their agenda.

Third, the longer it takes to certify the winner and the more times this goes through various courts, the easier it will be for Republicans to question Senator Franken’s legitimacy.  They’ll spend the next six years accusing him of “stealing” the election; they’ll try to turn him into an albatross around the neck of the Democratic Party.  Republicans will use Franken’s alleged illegitimacy to hamstring him as a Senator and to defeat him for re-election.

And, in the end, this all benefits Norm Coleman.  If he loses, he’ll probably end up on right-wing welfare, and the conservative movement will reward him for undermining Franken.  In fact, considering the slim margin of victory here, I wouldn’t be surprised if Coleman runs for office again (unless his FBI investigation catches up with him).

Swing And A Miss

Big John Cornyn’s just started as head of the National Republican Senatorial Committee, and he kicked off his new office by attacking Al Franken over the Minnesota recount.  But it looks like he tripped over a big pile of fail on the way to whatever point he was trying to make.

Let’s parse:

Al Franken is falsely declaring victory

Actually, the Franken campaign is expressing confidence that they will win, not saying they’ve already won. It’s a narrow distinction, but if Cornyn is going to hit Franken over it then he should at least get his facts straight.

based on an artificial lead created on the back of the double counting of ballots.

Actually, when Coleman sued over the alleged duplicate ballots, the Minnesota Supreme Court ruled he didn’t have enough evidence to prove that even a single ballot was counted twice. But good try there.

His campaign’s actions in the last several days on the issues of rejected absentee ballots are creating additional chaos and disorder in the Minnesota recount.

Actually, the Minnesota Supreme Court ruled that there were about 1,300 improperly-rejected absentee ballots that should be counted, and they ordered the Franken and Coleman camps to work together to determine which of those votes should be added to the recount.  Franken is the one saying all of those votes should be counted since they were improperly-rejected; it’s the Coleman campaign who has creatied chaos and disorder by insisting that only 136 of those ballots be counted.

Those actions, coupled with the recent comments by Senator Amy Klobuchar of Minnesota, who suggests seating someone even if there is an election contest, are unprecedented.

Actually, like TPM points out:

Cornyn alleges that it is “unprecedented” to seat someone while an election is still being disputed. As recently as 2007, Rep. Vern Buchanan (R-FL) was seated without prejudice by the majority-Democratic House while his election was being contested, and in 1997 the majority-Republican Senate provisionally seated Sen. Mary Landrieu (D-LA) after her GOP opponent alleged irregularities in her very narrow win.

Moving on:

Minnesotans will not accept a recount in which some votes are counted twice

First, see point #2 above.  Second, I don’t really think the junior Senator from Texas knows much about what the people of  Minnesota will or will not accept.

and I expect the Senate would have a problem seating a candidate who has not duly won an election.

What’s the definition of someone who duly wins an election? You duly win an election by  getting the most votes. As it stands, Al Franken has the most votes.  And while Norm Coleman may go to court and try to sue his way back into office, right now Al Franken has duly won the Minnesota election.

Thus, the United States Senate should seat Senator Franken, and ignore the moronic fauxtrage coming from people like John Cornyn.

Stealing Minnesota

It looks like Norm Coleman wants to steal back what he lost:

Minnesota’s highest court on Wednesday ruled against Republican Sen. Norm Coleman’s attempt to keep dozens of possible double votes from Democratic-heavy precincts out of the long-running U.S. Senate recount, but left the door open for a lawsuit.

[…]

Coleman’s attorneys, who said the campaign was “deeply disappointed” by the decision, added that it virtually guaranteed the recount would end in litigation and delay the seating of a Minnesota senator past Jan. 6, when the next Congress convenes.

“This is close enough so that inevitably as a result of this decision, either party is going to be filing a lawsuit,” said Fritz Knaak, Coleman’s lead attorney for the recount.

Here was the issue at hand:

In a brief, unanimous decision handed out earlier this afternoon, the Minnesota Supreme Court denied Norm Coleman’s request to prevent certification of the recount until claims regarding alleged double-counted ballots are resolved. Nor will it require any further efforts from the counties in pursuit of such ballots.

The Court decided simply that Coleman hadn’t presented enough evidence, essentially challenging him to contest the election if he could come back with more. As we pointed out yesterday, while it is nearly guaranteed that there were at least some instances of double-counting, the same discrepancies could be explained by other phenomena, an Coleman’s case relied on what might could best be described as circumstantial evidence.

So Coleman says there are ballots that were duplicated but not marked as duplicates, leading to a single vote being counted twice; the problem is, they have no evidence that actually occurred.  So in the end, the court decided they had no grounds upon which to overturn the result of the recount.

A win is a win; even if it’s by a small margin, whoever gets the most legitimately-cast votes takes office.  Norm Coleman is trying to weasel his way back into the Senate by disregarding the will of the voters.  But when this is  all said and done, Coleman won’t have a legal leg to stand on–or a Senate seat to sit in.