Is Coleman's Goal a Do-Over?
from FiveThirtyEight
Close only counts in horseshoes and hand grenades. And maybe, Norm Coleman is hoping, elections in Minnesota.
Call it a hunch, but a couple of recent articles suggest that Norm Coleman's goal might not be to pull ahead of Al Franken outright, but rather to create enough confusion and uncertainty around the outcome of the recount that the Senate calls for a re-vote in Minnesota, as it did in the New Hampshire Senate Race of 1974.
Firstly, take this Wall Street Journal article from Michael Stokes Paulson, a law professor at the University of St. Thomas:
Close only counts in horseshoes and hand grenades. And maybe, Norm Coleman is hoping, elections in Minnesota.
Call it a hunch, but a couple of recent articles suggest that Norm Coleman's goal might not be to pull ahead of Al Franken outright, but rather to create enough confusion and uncertainty around the outcome of the recount that the Senate calls for a re-vote in Minnesota, as it did in the New Hampshire Senate Race of 1974.
Firstly, take this Wall Street Journal article from Michael Stokes Paulson, a law professor at the University of St. Thomas:
And what if there is no reliable way to determine in a recount who won, consistent with Bush v. Gore's requirements?(More here.)
The Constitution's answer is a do-over. The 17th Amendment provides: "When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."
In a sense, a vacancy has already "happened." The U.S. Senate convened on Jan. 6 with only one senator from Minnesota. Still, the seat is perhaps not "vacant," just unfilled. But if the contest proceeding does not produce a clear winner that passes constitutional muster, a special election -- and a temporary appointment by Gov. Tim Pawlenty -- may be the only answer.
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2 Comments:
Nate Silver accurately summed up my reading of the WSJ piece … Mr. Paulson's argumentation is poor. Paulson’s argument could be made about every election but misses the point that the goal of an election is to determine the “will of the people” not to obtain an indisputably accurate result. With over 12,000 absentee ballots rejected, Minnesota will never know the true “will of the people”.
Frankly, I am surprised by the Coleman legal team’s tactics. I would have thought they would go after an easy win and build on that ruling for future decisions. The second phase of the trial that Coleman requests involves the lost 133 ballots. I disagree with the Canvassing Board’s acceptance of those ballots. If you recall the State Senate District 27 contest between Dan Sparks and Grace Schwab, the Court ruled that none of the ballots could be counted when during the course of the recount it was discovered that an election judge had burned some of the ballots. The logic was that they could not presume the results when the recount was to authenticate the ballots cast. Coleman’s attorney (who lost the case) is now using that ruling to argue his case. Coleman would net 46 votes and then Sparks ruling becomes the standard for the other phases of the case.
Instead, Coleman’s focusing on the absentee ballots and potential duplicate ballots as his first phase of the trial. If Coleman prevails, the Court would be stuck with two choices of how to handle the ballots. The first choice would be to follow the Sparks ruling and rejected all ballots from those precincts … the Coleman suit identified 22 precincts … predominately in Minneapolis. Let’s use a worse case example – Ward 8 Precinct 7 … Franken got 1049 votes Coleman got 165 and others got 146 … the recount caused a change of 12 votes. If Sparks is used, then Franken loses Big Time.
Now, the alternative for the Courts is to use Hanson –v- Emanuel, which the MN Supreme Court ordered to "eliminate" the illegal votes it is appropriate to reduce the vote totals of each candidate in proportion to the percentage vote that each of them received in each affected precinct. In that case, Coleman will never get to the magic 225 votes that he needs to change. Coleman's team indicates that if the trial is done in the phases that it requested, it might end early if the rulings go against them ... if that's so, then they should go after the missing 133 votes first ... if they lose on how the duplicate ballot questions, they lose.
The real case is not Coleman-v-Franken, it's Sparks/Schwab -v- Hanson/Emmunuel. Right now, unless Sparks prevails, I cannot see how Coleman changes the results.
I cannot see any reason for an “Election Re-Do” … unless both parties drag this on forever … then Barkley will probably increase his vote share.
Actually, the quickest ending would be for Obama to ask Coleman to be Commerce Secretary … it would give him another self-described Moderate Republican in his Cabinet … and someone that agrees with him on renewable energy and climate impact …. But Coleman has burned that bridge. Coleman is just dragging this out to garner more donations.
Today’s news as reported by MPR : Norm Coleman's lead attorney Fritz Knaak has asked that the remaining 12,000 rejected absentee ballots be opened. "However, those that were, those that were rejected through no fault of the voter and conform to the laws of this state as to voting requirements, voter eligibility and voter intent, we believe those ballots must be opened," said Knaak.
Coleman attorneys estimate that well over half of the 12,000 rejected ballots should be counted, because they resemble a smaller lot of rejected absentee ballots that were allowed into the recount.
My assessment : Apprarently the smokescreen of “more ballots counted than voters in 25 precincts” (when the court filing only lists 22) and missing ballots will not move 225 votes away from Franken.
As a voter, I would rather see these 12,000 ballots be fully reviewed. If over the past three months, election officials had contacted these rejected voters, many could have been corrected to be acceptable.
But by Coleman asking for potentially 6,000 ballots, this is the ultimate nail in the coffin.
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