MN Election Judges Count Final Ballots; Find Franken Wins, Coleman Loser!
Tally concludes finding 312 vote victory for the Democrat, as the Republican contester prepares his final appeal(s)
But does the state's former Senator have a legal leg to stand on?...
Author and former radio talk show host Al Franken, the Democratic challenger for the U.S. Senate seat in Minnesota, will
be the state's next U.S. Senator, according to a final tally by the bi-partisan three-judge panel overseeing challenger
Norm Coleman's election contest against him.
This morning in St. Paul, officials from the Minnesota Secretary of State's office, under the in-court direction of the
three-judge Election Contest panel in the former Senator's contest against Franken, tallied all remaining lawfully cast
absentee-ballots that were not previously opened and counted. This was done on camera, in open court. The attorneys from
both sides, along with the media, were all present.
The final tally of the remaining ballots was 198 votes for Franken, 111 votes for Coleman and 42 votes for "other." When
this is combined with the initial 225 vote lead, certified by the bi-partisan State Canvassing Board in December, it
adds up to a 312 vote Franken victory, arrived at by both a transparent, post-election hand-count late last year, and
the additional tallies added under the painstaking care exercised by the three-judge panel in Coleman's three-month long
contest trial.
Al Franken has now won the U.S. Senate seat, but do Coleman's promised appeal(s) stand a chance of winning? And will the
Democrats in the U.S. Senate now assume their Constitutional right to dutifully seat the Senator from Minnesota?...
The Transparent, Painstaking Road to Victory
After Franken was unanimously declared the winner by a 225 vote margin on Jan. 5, 2009, by the bi-partisan Minnesota State Canvassing Board, Coleman filed notice he was
contesting the election. The contest was assigned to a bi-partisan three-judge panel, which, during the span of a seven
week trial, reviewed 19,181 pages of filings, 1,717 exhibits and heard the testimony of 142 witnesses. The panel issued
a key Feb. 13, 2009 ruling that expressly rejected [PDF] Coleman's central legal argument contending the court should "accept the introduction of absentee ballot return
envelopes and supporting materials en masse in accordance with categories [he had] identified." Coleman's position rested "upon the faulty premise that [he] could
meet [his] burden…by proving that the reason for which the absentee ballot was rejected was not proper." The court found
that simply because an election official gave an erroneous reason for rejecting an absentee ballot, that did not mean
that the ballot "was lawfully cast." Proof that a ballot was lawfully cast must be made on an individualized basis, the
court determined.
Last week, on March 31, 2009 the court issued another key ruling seen as unfavorable to Coleman's case. Where he had claimed at the start of the contest that some 5,000 absentee
ballots were improperly rejected, the court, after a painstaking, ballot-by-ballot review, directed that 400 previously
unopened ballots be delivered to the court by yesterday, April 6, 2009 to be opened. A good number of these were
previously unopened absentee ballots that Franken had sought to be opened. The court cautioned that some of these
ballots may not be counted; that some were being opened because the court needed to see the originals to assure that
they were lawfully cast.
Today, in open court, the remaining, uncounted, lawfully cast absentee ballots were opened and tallied, giving Franken a
final 312 vote victory out of some 2.9 million ballots cast in the election.
On Election Night, when he held a slender lead in the unofficial early count, Coleman said that if he were behind he
would not so much as seek a recount because he thought "the need for the healing process is so important."
Coleman to Appeal, But on What Grounds?
So the question now remains, what will Coleman now do? He could honorably, and finally concede, but don't hold your
breath.
Based on statements made by his attorney, Ben Ginsberg, Coleman's next step will be an appeal to the Minnesota Supreme
Court. Almost from the moment the three-judge panel issued its Feb. 13, 2009 ruling, Ginsberg had begun stridently
claiming that the election was "fatally flawed;" that the strict standards applied by the court for the opening and
counting of absentee ballots designated by Coleman in the contest had not been uniformly applied by election officials
throughout the state with respect to the more than 280,000 absentee ballots that had been previously opened and counted.
Referencing Florida 2000's controversial U.S. Supreme Court ruling in Bush v. Gore, Ginsberg contended Coleman was denied equal protection.
As both the Franken legal team, and the three-judge panel, observed, Ginsberg's equal protection argument is fatally
flawed. For starters, there is a serious issue of waiver. Coleman did not challenge the lawfulness of the previously
counted absentee ballots either during the post-election hand-count or in his notice of contest.
The three-judge panel observed [PDF] that Bush v Gore was based on questions arising under "Florida's basic command…to consider the 'intent of the voter.' The United States
Supreme Court found that while this principle was 'unobjectionable as an abstract proposition…the problem inheres in the
absence of specific standards to insure its equal application.'" Minnesota's objective standards for opening and
counting absentee are specific, clear and unmistakable.
Franken's legal team argued [PDF] that imperfect application of these clearly delineated standards by local election officials does not "constitute a
constitutional violation. Not only would this result in an untenable rule that would make democratic and federalist
government impossible; it finds no support in the case law. Rather, courts have consistently refused to find
constitutional violations due to errors or inconsistencies, where clear state standards exist."
Under Minnesota law, the governor is ordinarily required to prepare an original certificate of election, countersigned
by the secretary of state, after the recount is completed, unless a contest is filed. In a March 6, 2009 decision,
Franken v. Pawlenty, http://www.courts.state....rrent/OPA090064-0306.pdf the Minnesota Supreme Court ruled that, where there is a contest, no certificate can issue, "until a court of proper
jurisdiction has finally determined the contest."
On 4/6/09 Mike McIntee of TheUptake.org reported that Minnesota's Republican Governor Tim Pawlenty said he may not sign the certification for Al Franken's
victory --- both he, and the state's Democratic Sec. of State Mark Ritchie are required to do so --- until all appeals
are exhausted even after a decision by the state Supreme Court. If so, this would be at odds with his previous legal
position. The Court in Franken v. Pawlenty stated:
The Governor and Coleman respond that the expression 'finally determined the contest' used in the contest tolling
provision refers to the final decision of the state courts in adjudicating the contest…
If my reading of the Minnesota contest statutes is correct, however, Pawlenty may have already been removed from the
equation. The pertinent provision, section 209.12, not only limits the question to be decided in a contest to "which
party received the highest number of votes cast and is therefore entitled to receive the certificate of election," but
states:
After the time for appeal has expired, or in the case of an appeal, after the final determination of the contest, the
court administrator…shall promptly certify and forward the files and records of the proceedings…to the presiding officer
of the Senate.
This raises a question as to whether there would even be a need for the governor's certification. Regardless, the
issuance of a certificate is a ministerial act. After denying Coleman's appeal, which is likely the Minnesota Supreme
Court could simply order Pawlenty to certify Coleman could then prevent certification only if the U.S. Supreme Court
issued an immediate stay as it was deciding whether to hear the case.
The combination of what I regard as a frivolous equal protection argument and the fact that four Justices of the U.S.
Supreme Court are associated with the radically subversive Robert Bork-founded Federalist Society raise a truly
disturbing potential. As I noted in "Prosecute or Perish" here at The BRAD BLOG the Federalist Society is committed to a hard-right agenda. While a majority of five Justices are needed to prevail in
the U.S. Supreme Court, only four are needed to decide that a case should be heard.
Make no mistake. The Coleman legal challenge is being driven by the same hard-right movement that brought us eight years
of the lawless "Unitary Executive" regime of George W. Bush. The hard-right is a "revolutionary power;"
billionaire-funded, anti-egalitarian ideologues dedicated to smashing the existing constitutional framework.
While the hard-right recognizes its equal protection argument is bogus, it succeeds if it prolongs its ability to
obstruct efforts to unravel the damage it caused over the past eight years by delaying the seating of a 59th member of
the U.S. Senate's Democratic Caucus. It's an echo of the Clinton years when the hard-right bottled up Clinton judicial
appointments, taking the long view towards a day when the Bush regime could fill vacancies with radicals-in-robes." Thus
we find Senator Tom Coburn (R-OK) stating, "The battle in Washington is real. Every day in the Senate without Al Franken is a great day." Sen. John Cornyn
(R-TX), chair of the Republican Senatorial Campaign Committee (RSCC), confirmed their caucus's anti-democratic
intentions recently, threatening "WWIII" if Senate Democrats attempted to seat Franken.
Yet, it is the Senate to which both Franken and those who support democracy should now turn. As the Minnesota Supreme
Court observed in Franken v Pawlenty, "the authority of the Senate under Article I Section 5 [of the U.S. Constitution] is plenary, and the Senate is
therefore free to seat Franken if it so chooses…" It can do so with or without certification.
Constitutional democracy cannot allow its future to be placed into the hands of the Court which gave us Bush v. Gore. While there may be some room for reasonable minds to disagree on whether the Senate should wait for a Minnesota
Supreme Court ruling (I would certainly invite readers to weigh-in on the subject), I believe that democracy should not
have to wait another day. The U.S. Senate should immediately take up the issue of seating Al Franken as the duly elected
Senator from Minnesota.
*************
Ernest A. Canning has been an active member of the California State Bar since 1977 and has practiced in the fields of
civil litigation and workers' compensation at both the trial and appellate levels. He graduated from Southwestern
University School of Law where he served as a student director of the clinical studies department and authored a Law
Review Article, Executive Privilege: Myths & Realities. He received an MA in political science at Cal State University Northridge and a BA in political science from UCLA.
He's also a Vietnam vet (4th infantry, Central Highlands 1968).