Will we have a second election?
- Article by: PAT DOYLE
- Star Tribune
- March 7, 2009 - 10:18 PM
Could the U.S. Senate election, its outcome tied up in the courts, simply be set aside and a new election held?
It's a prospect that was raised by Norm Coleman and his attorneys last week and was echoed by about half of the Minnesotans who backed the idea of a new vote in a statewide poll.
What are the odds of it happening -- at least any time soon?
"About the same chance as me winning the lottery," said David Schultz, a professor at Hamline University who specializes in election law.
But there is one scenario -- albeit a long shot -- that could lead to a new election.
Suppose the three-judge panel hearing the election trial rules in favor of Franken, but the Minnesota Supreme Court agrees to hear Coleman's claims on appeal and doesn't rule quickly.
And then suppose Senate Majority Leader Harry Reid makes good on Democratic hopes to seat Franken provisionally as soon as the beginning of April, even if Coleman files appeals. The Minnesota Supreme Court acknowledged Friday that the Senate has the power to do so, although Senate rules require a certificate of election that the high court says can't be issued until state appeals are exhausted.
"Let's say this is still going on in a fashion where there's at least a plausible, if tiny, chance that Coleman could prevail," said Norm Ornstein, a leading expert on Congress and resident scholar at the American Enterprise Institute in Washington.
If that occurred, Ornstein, a longtime friend of Franken, expects that Republicans would unite and block Democrats from getting the 60 votes they would need to break a filibuster and seat Franken.
A split decision by the three-judge panel and the Minnesota Supreme Court would in particular reinforce GOP resolve to keep the seat vacant. So might an appeal by Coleman to federal courts.
Concern about Minnesota having only one U.S. senator might mount in that case and prompt more calls for a new election. The recent Rasmussen Poll showed the issue would be very partisan: 71 percent of GOP voters said they favored a new election, while 69 percent of DFLers said they didn't.
Would do-over be any better?
Ornstein says there is an inherent illogic to makeover elections. All elections have flaws and a new Senate election might have as many problems as the last one.
"If it's close, then it's no more valid than the first election," Ornstein said. "You just keep doing do-overs until you can finally get somebody winning by a wide margin."
Still, a Senate stalemate could prompt the Legislature to call a new one.
The issue of a do-over election gained attention last week when a Coleman lawyer suggested to the three judges that the November election was too flawed to be legitimate.
"Some courts have held that when the number of illegal votes exceeds the margin between candidates -- and it cannot be determined for which candidate those illegal votes were cast -- the most appropriate remedy is to set aside the election," attorney Jim Langdon wrote the panel.
But Schultz said, "Courts are so reluctant to order a new election." And a new election is "not going to be reflective of what people were thinking back on Nov. 4, 2008."
The three-judge panel is authorized to decide whether Coleman or Franken got the most legitimate votes, not to call a new election, legal experts say.
"I think the court would like to find a way to identify a winner given all the evidence in the courtroom, as opposed to in essence throwing up its hands," said Edward Foley, an Ohio State University professor specializing in national election law who has followed the trial closely.
Coleman has the burden in the trial of proving that the state Canvassing Board was wrong when it certified Franken the leader in January. "Right now the presumption is that Franken has won the election," Schultz said. "A tie goes to Franken."
The state Supreme Court could provide Coleman with a forum for getting beyond the nitty-gritty of examining specific ballots to attack the fundamental fairness of the election. Coleman says that disparities in the way counties, the Canvassing Board and the three-judge panel decided which votes to count violated state election law and the equal protection clause of the U.S. Constitution.
For instance, Coleman claims that thousands of absentee ballots tallied during the recount would have been invalid under a Feb. 13 ruling by the three judges hearing the election trial.
"It does seem that Coleman has put on enough evidence to show that there's potentially a sizable number of ballots that should not have been counted, given that order," Foley said.
But the panel and appeals courts could reject the challenge because he raised it late in the trial, Foley said. They also could simply conclude Coleman has failed to prove that the invalid but counted ballots tipped the balance.
Franken lawyers say there is no equal protection issue because state law sets clear standards for how absentee ballots should be counted.
But Foley says the way counties handled the voting suggests that some had policies that differed from the law.
Constitutional issues notwithstanding, "I think it's very unlikely the U.S. Supreme Court is going to take the case," Foley said. "If there's an institution in Washington that really needs to handle this, the U.S. Senate has authority."
Grounds for a showdown
But the larger challenge to the fairness of the election could give Republicans an argument for blocking Franken.
"What they've done is at least provided themselves with the cover to say, 'This isn't some crass, naked political decision-making,'" said Prof. Guy-Uriel Charles, an election and constitutional-law expert at Duke University. "They can say, 'We've really uncovered something here that tells us the winner cannot be determined in this race.'"
Republicans have an incentive to block Franken for even a couple of months because it would leave Democrats two votes short of the 60 needed to break GOP filibusters.
There could also be a monetary bonus for blocking Franken, arguably the most visible symbol of Republican ire.
"Al is a fundraising magnet for Republicans and they're using it, they're exploiting it to the hilt," Ornstein said.
A decisive ruling by the Minnesota Supreme Court favoring Franken would probably break any logjam in the Senate, Ornstein said. "If it's clear to everybody that Coleman's just delaying the inevitable ... I don't think you get a united Republican Party," he said. "Franken gets seated."
Pat Doyle • 651-222-1210
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