Franken Looks Like a Winner, but Not Quite a Senator

By Chris Cillizza And Paul Kane
Monday, January 5, 2009

He's good enough, he's smart enough, and, gosh darn it, he's a U.S. senator?

Not yet, but recent developments in the unending recount in Minnesota's Senate race have given entertainer Al Franken (D) a burst of momentum over Sen. Norm Coleman (R) and left national Democrats increasingly confident that the Gopher State will fall into their column sooner rather than later.

Although Franken trailed Coleman on election night, the Democrat -- thanks in part to the ace work of election lawyer Marc Elias -- has gained steadily ever since. A hand recount of the nearly 3 million ballots cast turned the race into a dead heat, and the recent counting of 933 wrongly rejected absentee ballots (don't ask) yielded a 225-vote edge for Franken heading into today's meeting of the state Canvassing Board, in which a winner -- presumably Franken -- will be named.

So, why won't Franken be a senator later today? Because of pending legal challenges that the incumbent's campaign thinks can sway the outcome -- the most important of which, dealing with the inclusion of 654 allegedly wrongly rejected absentee ballots (from largely pro-Coleman territory), will be decided by the Minnesota Supreme Court.

"We remain convinced that this process is broken and, as a result, the numbers being reported will not be accurate or valid," said Coleman's campaign manager, Cullen Sheehan.

Even if the state's highest court disallows the counting of those 654 ballots, expect Coleman's legal team to formally contest the recount, citing alleged irregularities that include the double-counting of roughly 150 votes and the inclusion of 133 ballots (cast, in a Dickensian twist, at a Minneapolis church) that disappeared between election night and the manual recount.

"The Coleman team has laid the groundwork for a real, substantive challenge in front of the Minnesota Supreme Court," said Vin Weber, a former member of Congress from Minnesota and now a lobbyist in Washington. "The race is still a ways from being over."

Democratic strategists, however, say that even if all of Coleman's challenges -- the 654 absentees, the double-counting and the church ballots -- fall the Republican's way, he still will not be able to overcome Franken's lead.

"With the Senate set to begin meeting on Tuesday to address the important issues facing the nation, it is crucial that Minnesota's seat not remain empty, and I hope this process will resolve itself as soon as possible," said Sen. Charles E. Schumer (N.Y.), former chairman of the Democratic Senatorial Campaign Committee.

Schumer isn't likely to get his wish when the incoming freshman Senate class is sworn in tomorrow. National Republican Senatorial Committee Chairman John Cornyn (Texas) promised that his party would stage a filibuster if Democrats -- as suggested by Minnesota Sen. Amy Klobuchar -- sought to seat Franken. "It is very clear that the people of Minnesota and the courts in Minnesota should make the decision about who won the Minnesota Senate election and not political leaders in Washington, D.C.," Cornyn said in a conference call with reporters late last week.

Privately, some Republican insiders are contemplating a next move for Coleman if he comes up short in the recount. One well-connected GOP operative said that Coleman is being mentioned as a possible chairman of the Republican National Committee.

Every Day Counts

Here's another confusing wrinkle to consider with the appointment process for several Senate seats: seniority.

For now, folks such as Franken and Roland Burris, the former Illinois attorney general picked by Gov. Rod Blagojevich (D) to succeed Barack Obama, just want to be recognized as senators. But how quickly that happens could someday be the difference between rank-and-file status and a committee chairmanship.

Under normal circumstances, the entire class of senators elected every two years is sworn in on the same day and their seniority is determined by a complicated series of tiebreakers, giving a boost to newcomers who previously served in the Cabinet, as a governor or in the House. In a December 1980 letter, the Senate Rules and Administration Committee put an end to the practice of outgoing senators retiring shortly after the November election and having their successor appointed early just to get a leg up on seniority.

A pair of senior Democratic aides suggested that, under the spirit of that letter, these new appointees should be considered part of the class of senators sworn in tomorrow. If that is the case, people such as Franken and Michael Bennet, chosen by Colorado Gov. Bill Ritter (D) to succeed Sen. Ken Salazar (D-Colo.) once Salazar is confirmed as interior secretary, will be judged equally alongside Sen.-elect Jeff Merkley (D-Ore.). For those with no major experience, the ultimate tiebreaker for seniority is the size of the states they represent, so Caroline Kennedy is sitting in a good spot because of New York's stature, should Gov. David A. Paterson (D) name her to succeed Sen. Hillary Rodham Clinton (D) once Clinton is confirmed as secretary of state.

But that 1980 ruling, issued by then-Sens. Claiborne Pell (D-R.I.) and Mark O. Hatfield (R-Ore.), never anticipated four senators leaving the chamber to go into a new administration and their successors taking over after the swearing-in day, so some outside experts dispute the notion that the Pell-Hatfield letter applies. Eric Ueland, a parliamentary expert who served as a top GOP aide for more than a decade, told The Fix that the date the replacement senators are sworn in should determine where they land in seniority.

"Given the Democrats' rigid adherence to seniority, the decisions made over the next few weeks by Clinton, Salazar, Paterson and Ritter could determine the leadership of key Senate committees for the Democrats a decade or more from now," Ueland, now at the Duberstein Group, wrote us via e-mail.

These slight ticks in seniority, one way or the other, do have implications. A few years ago, Sen. Saxby Chambliss (R-Ga.) was able to become chairman of the agriculture committee (he's now the ranking minority member) over colleagues also first elected to the Senate in 2002 because he was deemed more senior than them based on his service in the House.


Penny Lee is leaving her senior post at the side of Senate Majority Leader Harry M. Reid (D-Nev.) to become a partner with the public affairs and consulting firm Venn Strategies. Lee is a well-known name in Washington, having served as the executive director of the Democratic Governors Association during the 2006 election cycle. Before that, Lee had the unenviable task of managing Pennsylvania Gov. Edward G. Rendell's public pronouncements as the Democratic governor's communications director.

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