When and How will Franken-Coleman Contest Be Resolved?

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Eric Black
MinnPost Political Blogger
Wednesday, May 6, 2009; 12:00 PM

MinnPost political blogger Eric Black took your questions about the ongoing legal dispute between Minnesota Senate candidates Al Franken and Norm Coleman, and the political pressures surrounding the case.

Read Eric's blog: Eric Black Ink

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Eric Black: Greetings earthlings.

This is Eric Black of MinnPost.com and EricBlackInk.

I've been covering and analyzing the Franken/Coleman campaign/election/recount/court contest and now Minnesota Supreme Court appeal. We are now in the pause between the filing of Norm Coleman's appeal brief, and the filing of Al Franken's, which is due Monday.

If you have questions about that process, fire away

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Washington, D.C.: as pointed out by Pat Buchanan on Hardball, there hasn't been a count with Coleman ahead since November. On what basis could they give it to him? Specter said so?

Eric Black: Hello D.C.

In case you didn't know, Specter reversed himself yesterday.

http://www.minnpost.com/ericblack/2009/05/06/8598/specter_takes_a_mulligan_on_colemanfranken

There is no basis on which the MN Supremes can declare Coleman the winner. This is often misstated. The biggest win for which Coleman can hope is that the Supremes remand the case back to the Contest Court and order them to count more of the absentee ballots.

If that occurs (which is not so very unlikely), Coleman could take the lead based on additional counting.

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Bucks, Pa: Would you agree that Sen. Specter's switch virtually guarantees that this fight will last as long as it is possible for the Republican's to drag it out?

Eric Black: Hello Bucks,

Not really. It increases the incentive for the Republicans to keep fighting, but doesn't increase their options. (In fact, it's one less Repub vote in the Senate if it comes to a filibuster.)

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Blaine, Minn.: If the Minnesota Supreme Court rules in favor of Franken (as most expect it will), and Governor Pawlenty refuses to certify Franken as the winner, what are Franken's options? Another lawsuit, or are there other possibilities?

Eric Black: Hello Blaine,

Pawlenty has said that he will follow court orders and is looking for "guidance" from the court on how to proceed. If the MN Supremes ORDER him to certify, he will do so unless another court (U.S. Supremes?) issues a stay, which is a longshot.

If the MN Supremes don't order, and Pawlenty doesn't doesn't certify, I suspect Team Franken would petition the court for such an order.

It's also possible that the Dem Sens would try to seat Franken without a certificate, and wait to see if the Repubs will filibuster.

But the likeliest scenario, even though there are many ways this scenario can be derailed, is the MN Supremes find for Franken, Pawlenty and Ritchie certify, and the Senate seats.

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South Riding, Va.: Why is it so hard to count ballots and determine the winner? Can it really be much more complicated than that?

Eric Black: A few months ago, I would have asked the same question. But I've learned that if you have a very small margin, and you get enough lawyers examining every aspect of the election with electron microscopes, you find flaws and arguments you never imagined before.

In this case, the key question is not about who the votes are for, but about whether thousands of absentee ballots should be opened at all. We're talking about absentee ballots that were rejected on Election Day because of various flaw: the signature on the absentee ballot envelope didn't seem to match the signature on the absentee ballot application, for example. Or the person who witnessed the absentee ballot wasn't listed as a registered voter.

So far, the courts have decided that absentee ballots have to meet all the legal requirements in order to be opened and counted.

Coleman's last, best argument is that, because some absentee ballots with flaws were counted in some counties counties that weren't so fussy or didn't check out as many aspects of the ballot) it creates and equal protection violation, and the courts need to order the counting of more ballots with similar flaws.

Eric Black:

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Modesto, Calif.: If you were entering a pool and had to select the date Al Franken would be sworn in as U.S. Senator what, date would you choose?

Eric Black: I stupidly made a prediction that it would occur by the end of June.

http://www.minnpost.com/ericblackblog/2009/04/13/8005/a_step-by-step_forecast_franken_will_likely_be_seated_by_may_or_june

My MinnPost teammate Jay Weiner got law professor Peter Knapp, who follows the MN Supremes like my son follows the Twins, to pick a date for when the MN Supremes would rule. He chose June 18.

http://www.minnpost.com/jayweiner/

But I can think of lots of ways it goes longer than that.

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Atlanta: Hi Eric, Given that so many Minnesotans now believe Franken will ultimately prevail, at what point do you think Coleman's efforts begin to poison the well against Republicans in the next cycle? I mean by adding to the trope that Republicans are becoming a purely obstructionist party?

Eric Black: Hi Atlanta.

In Minnesota, this question is usually framed in terms of Coleman's political future. If he makes a future race, will voters hold it against him (sore loser charge) that he dragged the case out so long.

It's not clear to me that Coleman has or wants a political future if he loses this case. His negative ratings are very high. And I'm sure that if he loses in the end he will try to make amends with a gracious statement.

Your question nationalizes the issue. In 2010, public perception that Repubs are obstructionists will surely be used against them. But I don't guess their handling of the Franken/Coleman election will be a major piece of that argument, unless they decide to filibuster the seating of Franken even after he receives (if he does receive) an election certificate. I think that would nationalize the issue more.

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Boston: What's a more painful story to follow -- this Franken/Coleman never-ending dispute or Brett Favre's never-ending retirement? Do you think this Minnesota electoral episode will lead to changes in Minnesota electoral law so that the state is not left this long without representation in future elections?

Eric Black: I haven't found the story painful to follow. I've learned a lot and, notwithstanding the growing impatience of many Minnesotans, the process is proceeding with admirable civility, transparency and a relative lack of partisanship among the key officials.

Changes to Minnesota's election laws, based on this experience, are moving through the Legislature as we speak,

As for Favre, I'm sure he'll lose interest once he realizes he would have to compete for the QB job with Tarvaris Jackson.

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Newark, Del.: Just another example of politicians valuing their personal fate far more than the well being of the republic. I have little hope for homo sapiens and am under no positive illusions of grandeur concerning any political system.

Eric Black: Buck Up, Newark. We've come through worse hells than this.

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Pittsboro, N.C.: It is one shanigan after the other by Coleman, backed by the GOP and the Republican Governor of the State. The voting process has gone through one litmus test after the other, and Franken is the winner. The GOP should take their marbles and go home - the Democrats have WON that Senate seat. Minnesota with this race is fast becoming the laughing stock of the country -- outdoing the outrageous scheming of what happened in Florida (Bush/Gore).

Eric Black: Hey there Pittsboro,

Nothing that has come to light in the Franken/Coleman case compares with the Florida 2000 chaos/shenanigans. We have no evidence nor even allegation of fraud, and there have been no riots attempting to intimidate the process.

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Saint Paul, Minn.: Hi Eric -- Thanks for taking questions today and for your uniquely Minnesotan insights. In your view, assuming the Minnesota Supreme Court upholds the trial's court ruling that Franken is the winner, what do you think the odds are that Pawlenty will sign off on the result? We have been supremely patient through this whole ordeal...but I really think the vast majority of Minnesotans will not stand for any more delays (i.e., a federal court appeal). Do you think the governor will take notice of that, or is it party above everything else?

Eric Black: Hey Saint Paul, how's the weather over there?

I agree that most Minnesotans have been patient and are starting to run out of patience. But even if they run out completely, there's not much they can do to speed the process.

My guess is Pawlenty will sign the certificate if the Supreme Court orders him to. My understanding is that a new federal lawsuit would have no real implications for the issuance of the certificate of election. A Coleman appeal to the U.S. Supremes is a little more problematic.

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Northern Virginia: Do you think that the race would have been as close, or Norm Coleman as reluctant to concede after the recount, if the Democrat were a more typical candidate, rather than, specifically, Al Franken?

This is not a criticism of Franken, who I like and believe will be a good Senator. Perhaps wrongly, I predict he'll be more of a workhorse than a showhorse. But I wonder if there's an extra gut level resistance because of who he is, unrelated to the technicalities of vote counting -- the same way I feel about Newt Gingrich or Sarah Palin.

Eric Black: There's been a lot of thought and talk along those lines. Franken wasn't an ideal candidate, mostly because of the potty-mouth humor he published and performed before he ran. But the ideal candidate never stepped forward. Franken won the endorsement and the primary fair and square.

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Richmond, Va.: While I wouldn't stake my life on it, I am pretty sure the Supreme Court will not get involved in this issue. I think we should all be patient as hard as it is. It won't be long now before Franken can be seated, right?

Eric Black: Hello Richmond,

I think your attitude is healthy (especially since the alternative to being patient isn't very constructive). I expect a result, perhaps in June, but there are still plenty of ways the process can be extended.

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Woburn, Mass.: Has Senator Coleman's efforts to Use Bush v. Gore been rejected by the Minnesota Supreme Court? The bogus Bush v. Gore ruling stated that it couldn't be used in any other case, but has that part of the ruling held up?

Eric Black: Hey there Woburn,

The lower court, what MN calls the Election Contest Court, rejected the equal protection argument. The MN Supremes haven't ruled on it yet.

You're right, any use of the Bush v Gore precedent will have to account for the strange language in the ruling implying that that ruling was a ticket for one train only.

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New York: How secure is Gov Pawlenty for re-election? Is there any downside for him if he refuses to sign on after Franken wins in the State Court system, if polling shows that the public wants a wrap up, or could he be vulnerable to a primary if he cooperates?

Eric Black: New York,

Pawlenty is not secure for re-election. This is a blue-leaning state and no governor has won a third t erm in many decades. But he is still well-liked here and will be formidable if he runs.

If he runs, he will face no primary problems.

But most informed speculation here is that he will not run and will concentrate on a 2012 bid for Prez.

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New York: I know the U.S. Supreme Court is not your beat, but can you imagine why any current member of the U.S. Supreme Court would want to re-visit the disgraceful Bush v. Gore? I'd sooner believe that they'd want to hear argument again on Dred Scott.

Eric Black: They never did repudiate Dred Scott.

Anyway, I understand your thinking. My guess is the SCOTUS will not take the case. Among other reasons, unlike a race for prez, the final constitutional authority on a Senate race is the Senate itself. Scalia, when he was still an appeals court judge, wrote that the courts have no role in Congressional election disputes.

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Washington, D.C.: At the risk of being overly cynical, has there been any actual, tangible harm to the state of Minnesota from having only one seated U.S. Senator? Yes, it's unfair that it doesn't have two seats like every other state, but what have been the consequences so far of that unfairness?

Eric Black: A reasonable question. The extent of the harm is often hyped up, for journalistic or partisan purposes. Our one senator, Amy Klobuchar, is having to do the constituent service work of two. It's said that in seeking MN's share of bennies from the bailout etc., we are one voice short, which is true. But we also have two committee chairs in our House delegation.

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Fairfax, Va: How do you see this fiasco being interpreted down the road? Does it set a precedent for future candidates to drag their heels for the good of their party, or will it be seen as an example of what not to do?

Eric Black: I see it as a step, and not such a big one, on a long road to more and more partisanship, more and more litigiousness (or do I mean litigiosity?) and more and more polarization. That being said, Coleman has simply availed himself of procedures provided by law.

Final thought: If Franken gets an election certificate and the Senate Repubs decide to filibuster anyway, that will be a big precedent that will come back to bite them. (Which is why I think it won't happen.)

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Kansas City: Has Ben Ginsberg talked at all about comparisons of Florida 2000 and this race? Maybe I'm wrong but it seems that he is supporting the opposite of what he did in 2000, kinda "don't do to us what we did to you" mentality.

Eric Black: Hello K.C.

He hasn't talked about it a lot. One problem is that Bush v. Gore is on both sides of this case. Ginsberg is happy to talk about the part that's on Coleman's side now, which is that disparities in the treatment of ballots is an equal protection problem.

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Bethesda, Md.: Hi Eric. Can you fill us in on the members of the Minnesota Supreme Court? How many judges are there, and what are their presumed "political affiliations," i.e., were they appointed by Republican or Democratic governors?

Eric Black: There are seven members. Two, including the chief, are Pawlenty appointees and have recused because they were on the state Canvassing Board.

Of the other five, none were appointed by Dem governors. One, Alan Page (former Viking great and now the senior justice) was elected to the court without having been appointed but is universally considered a Democrat. The others were appointed by Pawlenty, Jesse Ventura (neither a Dem nor a Repub), or Arne Carlson (a moderate Repub).

So far, unlike some other situations, partisan analysis of the decision-makers have not been a good guide in this matter. The refs have been calling them fair and almost all rulings have been unanimous.

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Memphis, Tenn.: Can the Secretary of State act independently of the governor, that is, it is his or her decision to certify once the Minnesota Appeals Court rules? Don't you think being patient is becoming a disenfranchisement of the voter at this point?

Eric Black: No, Memphis. Under MN law, the certificate of election is first created and signed by the governor (and ours is Repub Tim Pawlenty), then countersigned by the secretary of state (and ours is Dem Mark Ritchie). Ritchie has said he will be ready to sign once the MN Supreme Court declares a winner. Pawlenty has said he isn't sure what he will do if the Supreme Court rules, but Coleman appeals the ruling to the U.S. Supreme Court or has started a new case in federal district court. But he has said that he will follow court orders. So it may make a difference, when the MN Supremes rule, if they specifically order Pawlenty to issue the certificate.

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Centreville, Va.: A question about Minnesota politics but not about the Senate election. Is Michelle Bachmann popular in her district? Is she popular in Minnesota? As a resident of Virginia, I find her endlessly entertaining, but not in a way that reflects well on the judgement of the people who elected her.

Eric Black: Bachmann has won twice in her district, and by impressive margins considering that she first ran for an open seat against a well-known opponent, and last year she embarrassed herself on national TV shortly before the election. She is said to be thinking about running for governor. I don't see her as a good statewide candidate, but, at least until redistricting after the 2010 census, she seems to have a good grip on her House seat.

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Stillwater, Minn.: Greetings Eric. It seems that this lengthy recount, contest and appeal process has actually afforded Al Franken the opportunity to appear senatorial. Of course, it's easier to be gracious when you're in the lead. But I recall some DFLer friends saying on Election Day -- "I couldn't vote for Franken...". Now it appears a solid and growing majority of folks prefer to see Franken seated. Aside from the obvious benefit to Franken -- he was trailing on the morning after electon day -- do you think this whole process has raised his stature with Minnesota voters?

Quick plug for MinnPost.com. My wife recommended the site and I'm hooked. Thanks for your excellent reporting.

Eric Black: Thanks Stillwater, for the MinnPost plug and for the question.

Yes, Franken has been in above-the-fray mode for some time. The problems that his pre-politics life created for his image will endure with some people. But many will judge him on how he conducts himself going forward.

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Washington, DC: You have addressed only questions from people who believe that Franken is the winner. I find it hard to believe that nobody who supports Coleman asked a question, given that approximately 1/2 of the state's voters cast their ballots for him. Why aren't you taking their questions?

Eric Black: I actually haven't seen a serious question based on the premise that Coleman will win. But I'll use yours to say what I've written before. The likeliest outcome from here is that Franken ends up in the Senate. If the Supreme Court remands the case for more counting, Coleman could overtake him. So far, every time they've counted more ballots, Franken's lead has grown. But Team Coleman says the pool of rejected ballots that it wants counted come from Republican-friendly districts. Maybe so.

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St. Paul, Minn.: I would think that if Coleman soon bowed out gracefully ("we fought the good fight; the result, though not what we'd have wanted, is in...") he could redeem himself in MN- and have a political future running for atty general.

Laurie Swanson is VERY unpopular in both parties, Coleman was very well regarded when solicitor general, and as mayor of St. Paul. Seems to me by serving the Repubs national goals he is undermining his own future.

Eric Black: A little hard to imagine a former U.S. Senator running for A.G. but not out of the question.

Swanson has problems, but so far isn't attracting much of a challenge.

A lot of people think about Coleman for governor, if Pawlenty doesn't run. He would start with a lot of name recognition.

My own guess is that he will see this through to the end, then (assuming he loses) make a graceful concession. Then take some time off from politics and try to make some money. He seems to have financial problems and many friends that want to help him but have been blocked by his job. (You may know there are allegations that some have tried to work around that block and help him anyway.

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Central Virginia: How much is this costing the taxpayer? Is it the Minnesota taxpayer (I would be happier about this!)?

Eric Black: Yes, the Minnesota taxpayer is sharing the cost of this process, with the Coleman and Franken donors. I don't have a dollar figure for you.

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Eric Black: Thanks for the excellent questions. Go get some fresh air everyone.

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