Democrats May Join Minnesota Fray

Posted December 5, 2008 at 6:18pm

Senate Democratic leaders are leaving open the possibility of inserting themselves into the Minnesota Senate race if Sen. Norm Coleman (R) prevails and Democratic challenger Al Franken protests the results.

A statewide recount has been completed and rulings await on thousands of disputed ballots. Majority Leader Harry Reid (Nev.) and Democratic Senatorial Campaign Committee Chairman Charles Schumer (N.Y.) would not rule out the possibility that they would entertain a protest of the results, which Franken has indicated he might file with the Senate.

“Let’s wait and see what happens. Let’s not prejudge it,” Schumer said late last week when asked whether he believed the Senate would seat Coleman if Franken contested the state’s certification.

A bipartisan review board is set over the next two weeks to rule on 6,655 ballots challenged by the Coleman and Franken campaigns during a statewide hand recount that was completed Friday. Democratic leaders have not said as much, but agreeing to review any protest of the election could ultimately lead to a Senate vote on whether to seat Franken over Coleman.

A move by the Senate to overturn Minnesota’s certified results would be unusual. There have been only five instances in the past 100 years in which a Senator has not been seated or been ousted over an election challenge, according to the Senate Historian’s Office.

Schumer declined to address whether he would recuse himself from the process of reviewing any protest that Franken might file in the likely event that the New Yorker ends up as the next chairman of the Rules and Administration Committee, which has jurisdiction over any election probes.

“I’m not Rules Committee chairman. I’m not going to answer a hypothetical,” he said.

With current Rules Chairwoman Dianne Feinstein (D-Calif.) likely to take over the Intelligence Committee, Schumer is next in line and is expected to take the Rules gavel. Senate Democrats have not officially announced their chairmanship picks.

Like Schumer, Reid is leaving his options open. His spokesman Jim Manley was vague when asked whether his boss was inclined to accept a Coleman victory certified by Minnesota in the face of a request by Franken that he be seated instead. Still, Manley’s comments appeared to suggest that Reid might be interested in accepting Franken’s protest, if it comes.

“As the process moves forward, Sen. Reid will be watching to make sure that the proper authorities in Minnesota are looking very carefully to make sure that no voter is disenfranchised,” Manley said. “A very important principle is at stake here, and that is a citizen’s right to have his or her vote counted.”

Reid made a similar statement just before Thanksgiving, after state officials denied Franken’s request to include rejected absentee ballots in the recount. Majority Whip Dick Durbin’s (D-Ill.) office declined to comment for this story.

The day after the Nov. 4 elections, Coleman led Franken by about 700 votes out of nearly 4 million cast. Following the completion of a statewide canvass of voting machine tabulations required by Minnesota law following every election, Coleman’s lead shrunk to 215.

At press time Friday, with the mandated statewide recount complete, Coleman’s lead appeared to be holding. The Minnesota secretary of state’s office was reporting a Coleman lead of 687 votes with virtually all precincts reporting, absent the ballots being challenged and 133 others that might have gone missing from one Minneapolis precinct.

It’s expected that Coleman, the first-term Senator and former St. Paul mayor, will be certified the winner over his comedian and liberal talk-show host opponent following the bipartisan board’s ruling. But what happens next would be Franken’s choice.

Marc Elias, the Franken campaign’s recount attorney, confirmed last week that filing a protest with the Senate is an option under consideration. “Those are things we would look at,” Elias said Tuesday. He added that he had not talked to anyone on the Senate Rules Committee and was focused for now on the recount process.

If Franken loses the race and declines to accept the results, the next steps are fraught with uncertainty. The Senate Parliamentarian’s office is researching all the permutations of how an election may be contested and how votes on the floor would be conducted, if it comes to that.

What appears clear is that Franken would have to formally petition the Senate for a probe into the election, and the Rules Committee has broad authority to investigate election cases, including conducting its own recount.

The Rules panel, however, would have to vote to begin the inquiry, and historically, those probes have taken months if not years to complete. Any findings — such as whether an election was legitimate — would be forwarded to the full Senate with a recommendation on what, if any, action to take, which the Senate could then decide whether to take up.

Former Senate Parliamentarian Bob Dove said overturning a state certified election result “would lead to scorched earth, World War III on the Senate floor.”

If Democrats decide to refuse to seat Coleman, Dove said, Republican outrage would likely lead them to block the Senate from organizing itself — meaning committees and their Members would remain in limbo until the issue was resolved. That would hamper Democrats’ plans to move quickly in the 111th to confirm President-elect Barack Obama’s Cabinet nominees.

Still, Dove said he could envision a scenario whereby Coleman would be sworn in “without prejudice,” a term that has been used in the past to connote a Member whose election might be investigated.

Senate Associate Historian Don Ritchie said it has been unusual for the Senate to invalidate a seated Member’s election, and most cases he has seen have involved charges that the certified winner engaged in election fraud or corruption. Franken has been arguing not that Coleman’s campaign behaved improperly, but that the state rejected thousands of absentee ballots that should not have been disqualified.

There does not appear to be a precedent for the Senate to intervene in a case in which the question is whether the state government improperly counted the votes.

For example, one early 20th-century case involved Illinois Republican William Lorimer, who began serving in the Senate in 1909. After probing allegations of electoral misconduct, bribery and corruption, the Senate voted in July 1912 to invalidate Lorimer’s election.

In perhaps the most unusual case, New Hampshire’s governor certified two winners in the 1974 Senate election. The Rules panel attempted to conduct its own recount but ultimately gave up that process in favor of having the chamber declare the seat vacant until a new election could be held.

More recently, Louisiana Republican Woody Jenkins contested the 1996 election of Sen. Mary Landrieu (D-La.), alleging election fraud. Because Landrieu had been certified as the winner by the state, she was seated “without prejudice,” and the Rules panel embarked on a probe of Jenkins’ allegations.

Ultimately, the committee — which was led by Republicans — issued a report saying Landrieu’s election should stand despite voting irregularities.

In the current case, Republicans have tried to paint Franken’s maneuvering during the recount as hyper-partisan and ethically dubious. GOP operatives who have monitored the recount are confident that Coleman will be certified the winner.

“Norm Coleman has won every vote count in this election taken to date. Minnesotans have spoken, and we believe all the lawyers and court challenges in the world are unlikely to change the fact that Norm Coleman won this election,” said Rebecca Fisher, spokeswoman for the National Republican Senatorial Committee. “I would hope Al Franken and Senate Democrats would not seek to put partisanship over the wishes of Minnesota voters.”

Shira Toeplitz contributed to this report.