After what is surely one of the longest elections in American history, the Democrats got what they wished for when the Minnesota Supreme Court decided that comedian Al Franken had won the Minnesota Senate election for the seat formerly held by the late Paul Wellstone.
I cry no tears for Norm Coleman. He is only in the Senate because Paul Wellstone was killed in a plane crash days before election day. Coleman has always reminded me of that cartoon about the chamelion who changes colors one too many times and is caught when he can’t keep up with the changes. He elbowed his way into the race due to some behind the scenes maneuvering when none other than Dick Cheney asked current Governor Tim Pawlenty to withdraw from the contest so Coleman could run.
While Coleman was a dutiful Bush hack at the beginning of his term, as election day came closer you would not know he owed his good fortune the Bush and Cheney. Even Republicans in Minnesota, who never really trusted him in the first place, openly talked of running someone against him in the primaries, but it went nowhere.
The Democrats–known as the Democratic Famer Labor Party (DFL)–in Minnesota–a name that c0mes from the days when Hubert Humphrey recast the party–had harbored a grudge against Coleman since he was elected, especially after he cried crocodile tears at Wellstone’s death and cynically moved to curb campaigning in tribute to Wellstone. They wanted this seat badly, not merely because it might give them a veto-proof majority, but because they relished seeing Coleman pack up and leave DC.
The Good
There is little question Franken’s election is a great victory for Democrats because when Pawlenty signed the certificate of election that gave them the veto-proof majority they desired. How truly veto-proof this majority proves to be remains to be seen, but at least on some issues it should hold together.
However since that majority includes closet Republicans such as Mary Landrieu, the Lousiana Senator who somehow made a mess of Katrina and tends to vote as if she were a reincarnated Dixiecrat, that veto-proof majority is a bit tenuous. Take the recent piece I wrote on the 2005 Bankruptcy Act, 18 Democrats crossed the aisle to vote with the GOP on this one including now-Vice President Joe Biden.
The good part about Franken is that his liberal credentials are impeccable and he struck just the right tone (this one must have really rubbed Coleman) when he stated he would be true to the ideals of Paul Wellstone. As he reminded people that he would be sitting at Wellstone’s old desk–which the Democratic leadership with an eye towards symbolism–assigned to him, Franken gave an emotional speech that is worth quoting at some length:
Paul looked at his job as improving people’s lives and that’s what I want to do. I’m not going to be able to fill his shoes. But I’m going to work as hard as I can to fulfill that goal, which is improving people’s lives…
It is technically true that this is Paul’s U.S. Senate seat, but I don’t think Paul saw it that way. This seat belongs to the people of Minnesota and so did Paul Wellstone — and so will I. Paul and Sheila [Wellstone] left us too soon, but they left us with legacies that will endure for generations.
What we’ve been through is just nothing, especially when compared to what so many Minnesota families have been going through during this same period. When you win an election, what you really win is a chance to go to work for working families who need a voice in Minnesota.
Whether Franken will have Wellstone’s ability to work with people from all political spectrums without compromising his core beliefs, remains to be seen, for Wellstone was someone who got along with bot Jesse Helms and Jesse Jackson, but one thing we do know and that is that Franken will not be a Mary Landrieu. And that is something to be celebrated.
The Bad–The Decision
Coleman’s unseemly delaying of Franken’s election–backed by GOP big spenders who paid his monstrous legal fees goes down as one of the more despicable moments in Senate election history. After numerous challenges, with a few false rumors thrown in to keep the talk radio types yacking away, Coleman finally had to face the music at the bench of the Minnesota Supreme Court.
It is important to note that in this unseemly challenge Coleman did not win a single point that he raised. The final vote total stood almost as it did on December 19 when the canvassing board finally sorted through all the ballots and gave Franken a 251 vote lead. In fact when the Supreme Court finally reviewed the case after all of Coleman’s challenges, Franken had GAINED 61 votes.
There is a certain irony in all of this as anyone who knows the history of Republican election challenges should know. The GOP has tried for decades to restrict voting rights, hiding behind the shield of illegal voting. In the past few years they have pushed strongly for voter ID laws under the pretense that too many ballots were being cast by questionable voters.
With the Franken election, it turned out that it was the GOP’s votes that were suspect. As Coleman’s challenges dragged on, more of Coleman’s votes disappeared. If we subtract Franken’s final winning margin of 312 from Coleman’s supposed 477 vote victory margin on Election Day, that means that 0ver 700 votes changed hands. That may calculate to an infinitesimal percentage of the over two million votes cast, but had this gone the other way you can be sure the GOP would be yelling “foul play” at the top of their lungs.
Instead the foul odor came from the Coleman camp. The actual Supreme Court decision makes for interesting reading far beyond the media soundbites that have relied on the summary of the decision. Reading the decisions several interesting themes emerge.
Whatever Happened to Strict Construction?
First, the so-called Originalist, strict-construction Repubublicans were arguing for a loose interpretation of the law to give their candidate a victory. The Court found this out of order:
Coleman contends that our precedent allows for something less than strict compliance with the statutory mandates. We disagree.
We conclude that our existing case law requires strict compliance by voters with the requirements for absentee voting. Thus, we reject Coleman‟s argument that only substantial compliance by voters is required.
Using less legalese–Coleman was asking that the Court deviate form the strict voting requirements for absentee ballots that had been set up by the state and affirmed in numerous court decisions. In short Coleman was asking the Court to change the rules. Again, had a Democrat been doing this Dittoheads all over the country would have been flooding the talk shows with their profanity-laced objections.
The only conclusion one can draw from this is that either Coleman was again playing the chameleon, choosing to change his Party’s adherence to the principle of strict interpretation or his challenge was intended merely to slow down Franken’s election. To advance a legal argument that asks a state supreme court to overrule a mountain of legal precedents is either the height of absurdity or nothing more than an attempt to keep the matter in Court.
The Minnesota Supreme Court seems to hint at the latter:
Furthermore, Coleman does not cite, and after review of the record we have not found, any evidence in the record that election officials required only substantial compliance in any past election or any official pronouncements that only substantial compliance would be required in the November 4, 2008 election. Nor does Coleman point us to the testimony of any voter who neglected to comply with the statutory requirements for absentee voting in reliance on either past practice or official assurances that strict compliance was not required.
This is about as feisty as a Supreme Court opinion can be without actually reprimanding the attorneys involved. It says Coleman made a questionable challenge to overrule the precedents and strict interpretation of the law that had governed Minnesota elections for generations–and failed to present ANY evidence to back up the claim. A first year law student could do better.
The second specious argument Coleman tried to advance was that handing the election to Franken violated his equal protection rights. Again the Court slams this argument not merely for its inapplicability to this case, but for Coleman’s not presenting any evidence.
Coleman was required to prove either that local jurisdictions‟ differences in application or the trial court‟s application of the requirements for absentee voting was the product of intentional discrimination. Coleman neither claims nor produced any evidence that the differing treatment of absentee ballots among jurisdictions during the election was the result of intentional or purposeful discrimination against individuals or classes. [My bold]
So again the Court is saying that Co0leman advanced a legal argument then failed to provide ANY evidence to back it up.
Bush v Gore
After this comes one of the more important and interesting sections of the opinion, one that no one in the mainstream press has seen fit to comment on: Coleman tried to use Bush v Gore to argue for his own victory. This should raise red flags for everyone is America, for in legal journals there has been an ongoing argument since that memorable opinion that the GOP would turn Bush v Gore to their advantage.
Coleman essentially was asking to use Bush v Gore to pull off a Senate version of that case with a state Supreme Court playing the role of the United States Supreme Court. He wanted the Minnesota court to overrule the three judge panel that had awarded Franken the election back in March.
If you want to know why Coleman’s people took this case no further, you need only read this part of the Minnesota opinion, for had Coleman taken his case the next step to the United States Supreme Court, that Court would have found itself having to rule on the Minnesota Court’s interpretation of Bush v Gore.
That would have been high stakes legal gambling because it would have been a no win situation for the US Supreme Court. You can imagine the public outrage that would have come had the US Court overturned the Minnesota Court because the Minnesota Court erroneously interpreted Bush v Gore–and this coming just as the United States Senate seeks to confirm Barack Obama’s nominee at a time when the sixtieth vote may prove to be extremely important.
On the other hand, had the highest court in the land agreed with the Minnesota Court’s interpretation of Bush v Gore it would have narrowed the scope of that decision considerably, for the Minnesota Court all but held that Bush v Gore was a kind of legal anomaly in which the facts and circumstances were so unique that to apply them to this case would have been wrong.
In summary, we conclude that Bush v. Gore is not applicable and does not support Coleman‟s equal protection claim.
That Coleman’s attorneys–and by implication the GOP which was looking over their shoulders during the entire case–would put Bush v Gore in play in this case with all the risks that entails shows how truly desperate they were to slow down the approval of Franken.
The Absentee Ballots
Throughout the recount, Coleman and his supporters continued to make the claim that they could prove that some of the absentee ballots were illegal. They kept shouting just give us a chance to examine those ballots and we will show you. The press largely bought this argument, but as the Minnesota Court recognized, like the other arguments in the case, it had absolutely no merit.
We’ll let the Court explain in its own words:
Coleman made an offer of proof identifying absentee ballot return envelopes that had been opened and the enclosed ballots removed and counted on election day or during the manual recount. Coleman did not seek to present evidence identifying the ballots removed from those envelopes and could not have done so, because once the ballots were removed from the envelopes and deposited in the ballot box, they were commingled with other counted ballots and could not be identified.
Read that last phrase over again–once the absentee ballots were removed from their envelopes NO ONE could have determined if they were erroneous because they were mixed in with the regular ballots.
Apart from this being yet another Coleman challenge that had absolutely no merit, think about its implications. There is a reason absentee ballots do not look different than regular ballots, which is to prevent them from being discriminated against. I am going to predict that you will see attempts by the GOP to undermine this principle, using the Coleman case as an example.
My guess is that the Coleman people knew this would go nowhere with the Court, but that it might help GOP attempts to further restrict voting rights. It will allow the GOP to say, “Look, we told you so. Norm Coleman lost because the Court had no way of knowing which ballots were absentee ballots. We need a better way to monitor absentee voters.”
As one of those absentee voters due to my disability, I would not look kindly on such attempts to restrict absentee voting.
The Ugly
I hope that the Democrats will use Coleman’s challenge during the Sotomayor hearings to demonstrate the hypocrisy of Republican legal philosophy. What the Coleman case tells us is that in the end the GOP has no legal philosophy other than winning.
The Coleman attorneys blew off any strict constructionist interpretation and instead adopted a completely opposite view. They also took the dangerous step of introducing Bush v Gore into their defense. The Minnesota Court’s rejection of these arguments, particularly their finding that Coleman produced no evidence to back them up shows that this case amounted to nothing more than a desperate attempt to keep Al Franken from assuming the seat that was rightfully his.
But I should not fault the attorneys. Any attorney is obliged to defend their client, even if the client has a weak case. The attorney in those circumstances must try their best to draw on any legal argument they can to try to sway the judges to rule in favor of their client.
Some cases are the legal equivalent of a Hail Mary pass. This one was one of those. Perhaps a better analogy would be one of those basketball games where one team has a big lead in the last few minutes, but the other coach insists on fouling in the long-shot hope the other team will miss all its free throws. The Coleman case was the equivalent of fouling with less than a minute on the clock and the other team up by double digits. By the timje the case reached the Supreme Court they were down by ten with ten second on the clock.
When a coach resorts to such tactics it may be because they want to insult the other coach and team by dragging out the game or because they want to try to taint the victory. It basketball it is generally considered a bush league (pun intended) move.
That is what we can conclude from the Coleman case. Once the canvassing board had completed its recount the game was over. But Coleman and the GOP refused to acknowledge that and continued fouling. In the end the insult was to Al Franken and the Democratic Party, as the Court all but acknowledged.
The ugly part of this is that it denied Al Franken the honor of being sworn in with the other new Senators. It denied the Democratic Party a member they were entitled to have. Whether policy was changed by that is hard to say, but had Franken been in the Senate the battle over the stimulus bill, among other issues, might have taken a different form.
When I wrote about the Inauguration of Barack Obama I wrote that perhaps the Era of Bad Feelings was finally ending. The Coleman challenge asks whether it represents the last gasp of that era or shows that I was in error by prematurely recognizing the end of the Era of Bad Feelings.
There is an old saying, be careful what you wish for. By stirring up bad blood in the Franken election Norm Coleman may have further stiffened Al Franken’s resolve and hurt his own political future. Politics, like basketball, does not like sore losers.
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