Senate Republicans Shouldn’t Allow Al Franken To Be Seated

03 Apr, 2009 by John Hawkins

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The mainstream media is running its own little campaign to try to get Norm Coleman to allow Al Franken to lawyer his way into a Senate seat that he lost at the ballot box. Here’s Chris Cilliza at Washington Post trying to do his part for liberalism by encouraging Coleman to concede,

Should Norm Coleman Concede?

…It’s clear that from a legal perspective Coleman has a right to continue the appeals process. Ginsberg argued throughout the seven-week election contest that the rules for inclusion of wrongly rejected absentee ballots were maddeningly inconsistent and made it impossible to know who really won the race on Nov. 4.

But, what makes sense legally and what makes sense politically are two very different things.

At 59, Coleman still could have a bright future in Minnesota politics. Gov. Tim Pawlenty (R) remains undecided about whether to seek a third term in 2010; if he doesn’t run for reelection, Coleman would be an obvious candidate for the GOP. And, if Coleman wants to stay out of politics for a few years, he could run against either Sen. Amy Klobuchar (D) in 2012 or even against Franken in 2014.

The longer Coleman pushes out the legal fight over the 2008 election, the more he risks alienating Minnesota voters who have already begun to care less about the last race and are ready to move on with their lives.

All the way back in December, Survey USA conducted a poll in which 40 percent of the sample said that the candidate on the losing end of the recount (it hadn’t been concluded at that point) should file a legal challenge to the results while 55 percent said the losing candidate should not challenge the results in court.

Let me say this as clearly as possible: Al Franken lost an election to Norm Coleman. Period. There’s no question about it. Today, Al Franken is ahead of Norm Coleman because the recount was rigged in his favor and the courts are always hesitant to overrule election officials.

Yet, what has been done in Minnesota has been dishonest, corrupt, and unconstitutional. Here’s law professor Michael Paulsen giving an excellent rundown of the vote counting gymnastics that have been done to help Franken,

By a vote of 7-2, Bush v. Gore (2000) ruled that Florida’s recount violated the principle that all votes must be treated uniformly. Applying precedents dating to the 1960s, the Court found that the Equal Protection Clause meant that ballots must be treated so as to give every vote equal weight. A state may not, by “arbitrary and disparate treatment, value one person’s vote over that of another.” Florida’s lack of standards produced “unequal evaluation of ballots in several respects.” The state’s supreme court “ratified this uneven treatment” and created more of its own, and was unconstitutional.

…Minnesota is Bush v. Gore reloaded. The details differ, but not in terms of arbitrariness, lack of uniform standards, inconsistency in how local recounts were conducted and counted, and strange state court decisions.

Consider the inconsistencies: One county “found” 100 new votes for Mr. Franken, due to an asserted clerical error. Decision? Add them. Ramsey County (St. Paul) ended up with 177 more votes than were recorded election day. Decision? Count them. Hennepin County (Minneapolis, where I voted — once, to my knowledge) came up with 133 fewer votes than were recorded by the machines. Decision? Go with the machines’ tally. All told, the recount in 25 precincts ended up producing more votes than voters who signed in that day.

Then there’s Minnesota’s (first, so far) state Supreme Court decision, Coleman v. Ritchie, decided by a vote of 3-2 on Dec. 18. (Two justices recused themselves because they were members of the state canvassing board.) While not as bad as Florida’s interventions, the Minnesota Supreme Court ordered local boards to count some previously excluded absentee ballots but not others. Astonishingly, the court left the decision as to which votes to count to the two competing campaigns and forbade local election officials to correct errors on their own.

If Messrs. Franken and Coleman agreed, an absentee ballot could be counted. Either campaign could veto a vote. Dean Barkley of the Independence Party, who ran third, was not included in this process.

Thus, citizens’ right to vote — the right to vote! — was made subject to political parties’ gaming strategies. Insiders agree that Mr. Franken’s team played a far more savvy game than Mr. Coleman’s. The margin of Mr. Franken’s current lead is partly the product of a successful what’s-mine-is-mine-what’s-yours-is-vetoed strategy, and of the Coleman team’s failure to counter it.

…But as matters stand now, the Minnesota recount is a legal train wreck. The result, a narrow Franken lead, is plainly invalid. Just as in Bush v. Gore, the recount has involved “unequal evaluation of ballots in several respect” and failed to provide “minimal procedural safeguards” of equal treatment of all ballots. Legally, it does not matter which candidate benefited from all these differences in treatment. (Mr. Franken did.) The different treatment makes the results not only unreliable (and suspicious), but unconstitutional.

Norm Coleman should fight this all the way to the Supreme Court and if he loses there, then the Republicans in the Senate should filibuster to stop Al Franken from being seated and demand a do-over election.

There will be some wimpy Republicans who won’t want to go that far, but make no mistake about it, if the situation is reversed and Coleman comes out ahead, the chances are 100% that the Democrats will refuse to seat him and demand another election. So, why should the Republicans act like patsies and just roll over for yet another Democratic attempt to steal an election?

Moreover, despite what you will hear in some quarters, this has been done before by the Democrats,

Rather than give up Senate control, both parties could be ready for a long siege. It’s happened before. In 1974, New Hampshire Democrat John Durkin ran for the Senate and very narrowly lost. A recount overturned the original result and gave Mr. Durkin a 10-vote lead over Republican Louis Wyman. But then the state’s Ballot Law Commission recounted the ballots and certified Mr. Wyman the winner by two votes. Mr. Durkin had no real evidence of fraud, but he contested the election anyway. The Democrat-controlled Senate sided with him and refused to honor the state’s certification. The seat remained vacant for seven months. The debate spanned 100 hours over 30 days with 35 inconclusive roll-call votes–and at the time the Democrats had a solid majority, 63-37. Imagine how bitter the debate will be over contested seats in an evenly divided Senate. (The 1975 impasse ended only when Mr. Durkin agreed to a special election. He won that race, but then lost a bid for a second term in 1980.)

Ten years later, it was the House’s turn to have a vicious dispute over a contested election, this time in Indiana. After a recount, Republican Richard McIntyre was declared the winner by 34 votes over Democratic incumbent Frank McCloskey. The Indiana secretary of state, a Republican, duly certified the McIntyre victory, but the Democratic House refused to seat him and left the seat vacant for four months while a special task force recounted the ballots. The task force decided–and the full House agreed along party lines–that the Democrat had won by four votes. Republicans charged that the Democrats had recounted the ballots till Mr. McCloskey was ahead and then promptly shut down the count. Newt Gingrich, the future House speaker, labeled the refusal to seat the certified winner “the Watergate of the House,” and his hard-line rhetoric helped him begin his climb up the leadership ladder in the House when he won election as GOP whip four years later.

Whatever happens in court, at this point, unless Al Franken wins another election, the GOP should not allow him to be seated in the Senate.