As they look ahead at the stakes -- one more Senate seat for the Democrats vs. one more for the GOP -- Republican senators are also looking back at a piece of court history -- Bush vs. Gore and equal protection arguments.
A state court could rule any day now on Norm Coleman’s challenge to Al Franken’s 225-vote lead in Minnesota, but the race may be far from over no matter what the judges say.
Top Republicans are encouraging Coleman to be as litigious as possible and take his fight all the way to the U.S. Supreme Court if he loses this round, believing that an elongated court fight is worth it if they can continue to deny Democrats the 59th Senate seat that Franken would represent.
And in pushing a possible Supreme Court conclusion, Republicans are raising case history that makes Democrats shudder: Bush v. Gore.
Coleman’s team says the different methods Minnesota counties use for counting absentee ballots violated the Constitution’s equal protection clause — echoing the same 2000 Florida recount case that effectively handed the presidency to George W. Bush. By making a constitutional case, Republicans are already looking ahead to federal court.
“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,” said Texas Sen. John Cornyn, chairman of the National Republican Senatorial Committee. “I’m not making any predictions, but I wouldn’t be surprised” if it ended up in federal court.
Democrats believe Coleman is just running the clock, delaying the inevitable.
“He’s lost the election. What he should do is save the people of Minnesota a lot of money and allow them to have a representative here,” Senate Majority Leader Harry Reid (D-Nev.) told POLITICO. “I mean, everybody knows that he’s lost the election. Talk to anyone who’s watched the proceedings the last week or two.”
Asked whether Franken should appeal if he loses, Reid smiled and said: “He won’t lose.”
Senate Minority Leader Mitch McConnell (R-Ky.) on Friday first blessed the idea of encouraging Coleman to take his fight into federal appeals court and potentially all the way up to the Supreme Court. On Monday, several top Republicans continued pushing the federal courts angle, which could delay the Minnesota Senate race for several more months.
“The state court is not the final word on that, because the question in federal court is whether the guarantee of equal protection under laws in the U.S. Constitution has been violated by an inconsistent policy with regard to counting ballots,” said Judiciary Committee member Jeff Sessions (R-Ala.). Sessions said he “absolutely” would encourage Coleman to take his fight to federal court if he loses.
“From what I can tell, there are legal issues well worth taking up in the [Supreme] Court,” said Sen. Lindsey Graham (R-S.C.). “I think the whole Bush v. Gore — using the same standards to count votes is a big issue.”
Democrats have expressed confidence that Franken would win, and the former comedian has repeatedly taken steps to prepare for a transition to the Senate. Reid has said that Coleman will “never ever” serve in the Senate again, and Sen. Charles Schumer (D-N.Y.) said that Franken could be a U.S. senator as soon as April.
“At some point, Republican senators have to be concerned about Sen. McConnell using their resources for a losing cause in 2008, rather than defending incumbents in 2010,” said Eric Schultz, communications director for the Democratic Senatorial Campaign Committee.
The question for Coleman — if he loses — is whether the encouragement from his Washington colleagues would backfire in Minnesota. With continued appeals, he risks angering Minnesota voters whose support he would need if he were to follow through on a rumored run for governor.
“Whoever the loser is, they’re going to have to examine how good they think their case is, whether they would have a chance of winning, what it does to the state by not having a second senator, the costs involved, all that sort of thing,” said Sen. Jon Kyl (R-Ariz.), the minority whip.
On Monday, rumors circulated that if Coleman loses, he’d be in line to replace the embattled Michael Steele as chairman of the Republican National Committee, but his campaign quickly sought to rebut the claim.
Tom Erickson, a spokesman for Coleman, said that the former senator believes Steele is doing “an exceptional job, is a strong voice and leader for the party. And he looks forward to working with him to build the party when he returns to the United States Senate.”
The actual ruling in the Coleman-Franken case may not be straightforward in declaring a winner. Following a seven-week trial, the judges are expected to issue a series of rulings based on arguments advanced by both sides. Either side could appeal to the three-judge panel or petition the state Supreme Court within 10 days of the ruling. And they also can choose to mount a battle in federal appeals court or eventually the U.S. Supreme Court.
Republicans are already trying to round up contributions to keep Coleman’s legal fees from mounting, especially in the wake of an embarrassing episode in which Coleman donors’ financial information might have been accessed by a hacker, forcing a shutdown of online contributions.
“I want to do all I can to help him,” said Sen. Lamar Alexander (R-Tenn.), who said he had maxed out his donations to Coleman.
“I’m sure he’ll have the finances he needs to carry on this legal fight,” said Sessions.
The Star Tribune is a member of the Politico Network.