Franken tightens grip on Senate seat, but lawsuit looms

The counting and recounting ends in Minnesota, with Democrat Franken leading Republican Coleman by 312 votes. But Coleman can still appeal the outcome.

By Mark Guarino  |  Correspondent/April 7, 2009 edition


A winner was finally tallied Tuesday in Minnesota’s US Senate contest between Democrat Al Franken and Republican incumbent Norm Coleman. But that does not yet mean there’s a final victor.

The two candidates’ battle to win the seat began in November and has already involved a 47-day ballot recount and a subsequent eight-week contesting of 350 formerly rejected absentee ballots. The counting of those ballots, finished Tuesday, resulted in Mr. Franken capturing 198 ballots to Mr. Coleman’s 111, boosting Franken’s lead to 312.

Franken won the initial ballot recount in January by 225 votes in what is considered the tightest election in Minnesota history.

But in all likelihood, this is not the final chapter. The stakes are high. If Franken wins, he will take the Democrats to 59 seats in the Senate – one short of the number needed to break Republican filibusters. Under Minnesota law, Coleman can appeal to the state Supreme Court, and his lawyers have suggested they might go further, taking their case to the US Supreme Court.

Coleman’s lawyers “have a great case” due to evidence that absentee ballots were handled differently in separate districts, says Sarah Janecek, publisher of Politics in Minnesota.

“When you have a race this close, this is where you see the warts [in the process], and it’s not going to be pretty,” she says.

Minnesota’s procedure for contesting close votes is unique among the 50 states, says Mark Ritchie, Minnesota’s secretary of State. The three-step process – a recount, a contesting of the election results, and an appeal to Minnesota Supreme Court – is time-consuming. But Minnesotans also say it is fair.

The exhaustive recount process “reflects that this process has been transparent,” says Kathyrn Pearson, a political scientist at the University of Minnesota, suggesting that the Minnesota challenge has been relatively orderly in comparison to the challenges in Florida after the 2000 presidential election.

“The bottom line is this is an extraordinarily close election,” she adds.

According to Minnesota rules, the state Supreme Court decision is followed by the Minnesota secretary of State and governor cosigning the election certificate, effectively filling the seat. “In Minnesota, we do bend over backwards, and if someone is unhappy, they do get their final day in the [state] Supreme Court,” says Mr. Ritchie.

But if Coleman bypasses the state decision and takes his case to federal court, he would potentially damage his long-term political career in Minnesota, says Dr. Pearson, the University of Minnesota political scientist.

“When you think [US] Supreme Court, you think the 2000 election,” says Pearson, noting that that election was ultimately decided by the federal high court.

“We’ve already seen an erosion of support for Coleman if he appeals,” she adds. “He has to think about aggravating your medium voter … at a certain point, enough is enough.”

The experience has revealed potential pitfalls with Minnesota’s three-step appeal system.

“If our state had been close in the presidential race … we would not have made the deadline set by Congress for the Electoral College ceremony,” says Ritchie. “It made me aware we potentially have a train wreck set out before us.”

The state’s generous appeal process is one that, by its very nature, will be used to the fullest extent by either side, Ritchie adds.

“When you have a legal system of attorneys who bill by the hour, there is a certain amount of self-interest in dragging the process out longer,” he says. “When you have such partisan divide in the [US] Senate, there is interest to prevent this seating.”

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