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Star Tribune Political Editor Doug Tice had a web chat session with readers on Tuesday, conducted shortly after 351 absentee ballots were counted in the U.S. Senate contest between Democrat Al Franken and Republican Norm Coleman. The counting occurred as part of the election trial in which Coleman is challenging the lead Franken held after the recount. A three-judge panel is nearing a ruling in the trial. Here's a condensed version of the questions and answers.
A: Here we go. The count is complete. ... it's clear that Franken substantially increased his lead over Coleman, with about 56 percent of today's votes, to about 32 percent for Coleman and 12 percent for other candidates. Franken's lead over Coleman is now something over 300 votes. [The tally for the day put it at 312 votes, up from 225 heading in]
Q: Where does it go from here?
A: Not entirely clear, but this court has some loose ends to tie up. There are disputes over alleged double-counting of votes and missing ballots. However, those issues now do not appear to be sizable enough to make up the difference between Franken and Coleman. Whether that will affect how the court proceeds we don't know.
Q: Do you have an idea when the court is going to rule on the remaining issues of the trial?
A: They've given no timetable, but it seems likely things will move quickly. This week? Not sure.
Q: So, is [Gov. Tim] Pawlenty going to certify this result?
A: Not if Coleman appeals. The state Supreme Court, in a ruling rejecting an earlier Franken request for [an election] certificate, made it clear that a certificate could not be issued until state court appeals are finished.
Q: If all this has been carried out according to state law and how the Minnesota Supreme Court laid it out, why would an appeal by Coleman have any chance?
A: Appeals occur because parties disagree about whether a lower court has properly interpreted the law. Sometimes appeals courts uphold lower court rulings, and sometimes they overturn those rulings.
Q: Doug, Does this Congress have the authority to stop all these useless appeals, one after another, after another???
A: Under the Constitution, the Senate (and the House) appear to have the authority to seat whomever the majority chooses. In the Senate, of course, it takes a supermajority to override a filibuster. That wouldn't necessarily end the appeals, but it could bypass them. The Senate could seat someone tentatively, and later reconsider in light of a court ruling -- if it chose to do so.
Q: If and when the State Supreme Court rules and assuming Franken maintains his apparent status as leader, will Pawlenty and [Secretary of State Mark] Ritchie then be expected to certify the results?
A: Maybe. Some legal scholars have suggested that if an appeal to the U.S. Supreme Court was considered a continuation of the current case -- an appeal of this ruling -- then the certificate could not be issued until that appeal was resolved.
Q: What is the longest period of time it has taken to seat a senator after the Senate has convened?
A: In 1975, a disputed Senate election in New Hampshire was finally resolved in September, fully 10 months after the original vote. A new election was held that month.
Q: Coleman has shown all intention of appealing, but do you think there is any chance that he would concede? At some point, political pressure and anger will have to grow in Minnesota. . .
A: All the signs are that an appeal is coming, but if public opinion was to turn decisively, who knows?
Q: Doug, you said: "Under the Constitution, the Senate (and the House) appear to have the authority to seat whomever they majority chooses." Does this mean the Senate doesn't have to abide by a Supreme Court decision? Put another way, can the U.S. Supreme Court dictate to the Senate to whom the MN seat must be awarded?
A: Many court rulings suggest that the houses of Congress have very nearly complete autonomy in these matters. It's a separation of powers issue. One strong proponent of that view is Justice Antonin Scalia. It seems highly unlikely that the Supreme Court would attempt to "dictate" an outcome to the Senate.
What restrains the Senate is, of course, public opinion, since the members are answerable to voters.
Q: I would think that an even greater restraint is the Senate's rule about filibusters. I doubt very much that the GOP senators would allow the Dems to seat Franken w/o a certificate.
A: No doubt you're right. But for that matter Senate Democrats have pledged to follow the longstanding rule that no one will be seated without a certificate.
Q: Who's paying for the court costs?
A: The contestant (Coleman in this case) is required by law to pay "costs" in the event he loses. The exact costs to be paid (public costs? Franken's costs?) will be up to the judges.
Q: Does MN state law close or leave open the possibility of a statewide new election?
A: My understanding is that it says nothing about it. So (we're speculating here) if the Senate was ultimately unable to seat anyone, and declared the seat vacant, the Legislature might have to enact a new law to provide for a special election. So then you might have the Senate Recount Special Session. But we're ahead of ourselves, frankly.
Q: I realize there is some inconsistency in the ways counties handle ballots, which is going to be the key in a Coleman appeal, but are there even potentially enough ballots to swing the result?
A: One line of argument for Coleman, earlier on, was this: Because of all the inconsistencies, the only way to treat all rejected absentee ballots equally would be to allow any ballot in if the voter was alive on election day and did not vote in person. If that was to be put into effect, many thousands of additional ballots would come in, and anything might happen.
Q: Do we have a conclusion for the next elections?
A: Lessons will be drawn, no doubt. But it may be important to remember that elections this close are very rare. What's clear to most observers is that Minnesota's absentee ballot rules are complex and easily trip up voters and officials.
Even under the strict rules of the canvassing board and this court, we've had more than 10 percent of the ballots originally rejected ruled to have been wrongly rejected. That's a high error rate.
Some effort to simplify and clarify the process seems likely.