by John Nichols / The Nation / January 5, 2009
After weeks of Minnesota recount wrangling over the close contest between Republican Senator Norm Coleman and Democratic-Farmer-Labor Party challenger Al Franken, the state canvassing board has certified Franken as the winner.
The canvassing board decision came Monday afternoon, after a final review of the tally, put Franken ahead by 225 votes.
The formal issuance of a certificate of election will not come for at least a week — perhaps longer — as legal challenges are sorted out.
But, says Franken recount attorney Marc Elias, “We are confident that since there are no ballots left to count, the final margin will stand with Al Franken having won the election by 225 votes.”
That’s a surprisingly solid margin, after weeks of seeing the divide between the contenders narrow to single and double digits.
Franken finished the recount process with a dramatic boost in the final review of absentee ballots.
“It took only an hour Saturday afternoon for election officials to count 933 absentee ballots that all sides had agreed were wrongly rejected. Franken won 52 percent of them and Coleman captured 33 percent (the rest went to other candidates or cast no vote in the Senate race). It was a surprisingly muscular margin that was reflected in the glum looks of Coleman staffers and the satisfied appearance of Franken’s staff,” reported the Minneapolis Star-Tribune. “Franken started the day with an unofficial lead of 49 votes. He achieved a net gain of 176 votes on Saturday.”
Coleman is vowing to delay the inevitable, however.
While the Minnesota Supreme Court on Monday rejected a request from Coleman’s legal team to alter the rules for recounts, Coleman lawyer Fritz Knaak says, “We are prepared to go forward and take whatever legal action is necessary to … remedy this artificial lead that we believe is being shown now for the Franken campaign.”
But it is hard to pin the “artificial” tag on a lead certified by the blue-ribbon canvassing board–which is made up of Secretary of State Mark Ritchie and a panel of veteran jurists from varying political and ideological backgrounds.
That hasn’t stopped Texas Senator John Cornyn, a hyper-partisan Republican, from threatening to try and block the seating of Franken with a filibuster. And Democrats will probably decide to let the court battles play out before moving to seat Franken, thus avoiding this particular partisan conflict in this first week of the new Congress.
The likely delay in Washington keeps faith with Minnesota law, which specifies that a formal certificate of election cannot be issued until all legal disputes related to a contest are resolved.
The Coleman camp has seven days in which to file formal paperwork contesting the election result. If they do so, as is likely, a three-judge panel appointed by Minnesota Chief Justice Eric Magnuson will have to review and resolve the lingering dispute before an election certificate can be issued.
Coleman’s lawyers put on a brave face Monday.
“We will not stop now,” Knaak announced.
But the Coleman camp’s options are narrowing. And even the most activist courts, in Minnesota and at the federal level, are disinclined to rewrite rules late in the game–or to try and overturn a victory that has been confirmed by a well-regarded (or, for that matter, even a not-so-well-regarded) canvassing board. As Franken lawyer Elias notes, the state’s highest court has already — with Monday’s decision “affirmed the validity of the rules under which this recount was conducted.”
Bottom line: We appear to have reached a turning-point day for Al Franken and Senate Democrats. Franken is not a senator yet, but the prospect that he will eventually claim the seat once held by his friend Paul Wellstone is now far greater than the prospect that Coleman will retain it.
For those like Franken (and this writer) who watched with frustration over six years as Coleman compiled a record diametrically opposite that of Wellstone, the canvassing board’s decision represents a very satisfying result, for Minnesota and America.
The Minnesota Supreme Court issued an order late Monday morning (pdf) denying an emergency motion from the Norm Coleman campaign to stop the State Canvassing Board from certifying the vote in the statewide Senate recount. That clears the way for the canvassing board to certify this afternoon that Al Franken received the most votes in the Nov. 4 election as determined by the recount that followed.
In its order, the court wrote that “the threshold question before us in this motion is whether disputes over rejected absentee ballots can be resolved in this automatic recount proceeding, or whether they must await an election contest proceeding.”
Only “obvious errors in the counting or recording of the votes” that all sides could agree on, the court said, should be fixed in the recount that the canvassing board will certify today. All other disputes belong in a court action called an election contest that either side may file within seven days of certification.
That reasoning goes some way to explain an aspect of the court’s Dec. 18 ruling (pdf) that has since been roundly criticized: a provision allowing the Franken and Coleman campaigns to remove from the recount even those absentee ballots that election officials decide should have been included on Election Day.
“[W]here election officials and the parties agree that an absentee ballot was improperly rejected, correction of that error should not have to await an election contest. We therefore ordered that any absentee ballot envelope that local election officials and the candidates agree was rejected in error should be opened and its ballot counted, subject to challenge by either candidate. In doing so, we implicitly recognized that any agreement among the parties was voluntary and, absent such an agreement, resolution of those disputed ballots would need to await an election contest proceeding.”
The order today carried the signature of Associate Justice Alan Page — who was first in line to criticize the court’s Dec. 18 order with a blistering dissent. As with earlier recount issues, the two members of the court who are currently serving on the State Canvassing Board — Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson — did not take part in considering or deciding the question. All legal filings before the court related to the recount are available online.
Chris Steller is a reporter for TWI’s sister site, The Minnesota Independent.