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Democratic stategy for seating Franken clarifies, as does their dilemma

By: Soren Dayton (Diary)  |  April 7th, 2009 at 01:26 PM  | 

RESIZE: AAA

Everything in Congress hangs on 60 votes in the Senate. Right now, the Democrats have 57 Senators plus Joe Lieberman. They could get one more if the Minnesota recount in the contest between Al Franken and Norm Coleman is decided in their favor. It is beginning to appear that the Democrats are settling on a strategy of attempting to seat Franken after the state courts decide, regardless of where the underlying issues stand.

For example, check out this quote from Chuck Schumer in The Hill:

“We believe the law of Minnesota requires a candidate to be certified after all the state appeals are through, whether someone applies to the federal court or not,” said Democratic Conference Vice Chairman Charles Schumer (D-N.Y.).

While Republicans are talking about this going to the Supreme Court, Democrats are playing that down. On Friday, Richard Hasen, who normally writes the excellent and critical Election Law Blog, argued at the blog of the American Constitution Society that SCOTUS wouldn’t be likely to take the case. At dinner on Saturday night with a bunch of Democratic staffers and operatives, they all sang from this playbook.

This strategy seems calculated to avoid the hard question in this case.

Ben Ginsburg, Coleman’s attorney, asks this question at Redstate:

Does the law allow not counting one vote when others just like it were counted by other counties and cities? Should a person’s vote count depending solely on where he or she lives? Should a contest court disallow votes based on counting rules it adopts but which no Minnesota county or city used on Election Day? Is it right to disallow a vote because the Minnesota Secretary of State’s database wasn’t up-to-date about whether the absentee voter or their witness were really registered?

If the Democrats move forward on trying to seat Franken before the whole process winds down, they will be, in essence, short-circuiting the judgement of the court with “yes” answers to all these questions. Ultimately, the fundamental question that Democratic Senators will be voting that votes don’t have to be treated the same everywhere.

They will be asserting that these kinds of facts should have no impact:

These voters remain disenfranchised because the Court changed the rules of the game on Friday, February 13th – long after the Election Day votes had been counted. Two and a half weeks into the trial and again yesterday, the court announced it would apply a “strict compliance” standard to judging the 11,000 unopened absentee ballots. That stands in contrast to the evidence at trial which showed that on Election Day, Minnesota’s counties and cities permitted ballots that “substantially complied” with the state’s laws to be counted. Altering the Election Day standard meant that thousands of ballots that would have been allowed on Election Day in most counties are now disallowed by the contest court

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  • jeffreywturner

    That is if the SCOTUS rules, as it did in Bush v. Gore, that the differeing standards violate the equal protection clause. Then, if it is determined, (which it will not be, if the Minnesotta Sec. of State has anything to do with it) that the only fairly applied standard would be to revert to the unbiased machine counts (which Coleman won), then Coleman could be declared the winner.

    I have said it before and I will say it again, if a Repbulican wins a close election, it HAS to be outside the margin of litigation, or else it will get taken from them in a recount/court battle. Bush won Florida by about 3k votes in 2000, which proved to be about 500 votes outside of the margin of litigation. (that is how close the Dems were able to wittle it down to before the clock ran out.)

    I really hate hand recounts myself, because as flawed as machines can be, at least they aren’t biased, and any mistakes they make should balance out in the grand scheme of things.

  • naraht

    After the result on election day, there was *required* to be a recount because the result was so close. After that recount, Franken was ahead. Even if a federal court throws out the entire ECC bizarity, I seriously doubt they would throw out the state required recount.

    The primary question here is whether or not the Supreme Court of Minnesota will issue a “Writ of Mandamus” on this which will essentially require the Governor to issue the Certificate or go to jail. I don’t think the Governor will be willing to go to jail to fight this and once Franken gets the Certificate, I think he’ll probably be seated. I’m not sure if seating Franken is something that can be filibustered, and even if it is, I think they’ll be at least two Republican Senators who won’t support the filibuster.

    • IJB

      It’s isn’t in the narrow parochial interests of *any* Republican Senator to not support a filibuster of seating Franken.

      Even Specter & Snowe will get this: fewer Republicans = less pull = less ability to insert pork into bills for their homes states = greater chance of losing reelection.

      The number one thing to remember about politicians – they will always do what’s in their narrow interest of being *reelected* **first**.

      There’s no way all Republicans won’t vote in favor of filibustering the seating of Franken.

      • naraht

        59 means that Snowe (for example) can all by herself go to the Democrats and offer to vote to end a filibuster in exchange for a great deal of things for Maine.

        The only place that doing that would hurt Snowe would be if she got challenged in a the Republican Primary and frankly *that* isn’t going to happen.

        • IJB

          As long as they maintain an (R) after their name, they can’t vote to seat Franken.

          As a result, probably the only one who’d be susceptible to such a deal is Specter – but he’d have to get a deal in writing that the Democrats would clear the primary field for him if he switched parties and ran as a (D). I don’t think the Dems can pull off such a deal.

          And, yeah – if Snowe did that, she would certainly get primaried, and she’d be a candidate for losing a Primary if she did that. Even more likely is that she’d get kicked out of the Republican caucus.

          • naraht

            Snowe has made a career out of being a Centrist and voting to seat Franken (or at least to refuse to join an effort to stop him being seated) isn’t going to change her status with the National Republican Party one iota.

            And even if she does get kicked out of the Republican Caucus, I have *zero* doubt of her ability to run for re-election and *win* as an independent. Not a Pseudo-independent like Joe Lieberman, but with a capital I next to her name. Two of the last five Governors of Maine have won as Independents. And Maine is not *that* expensive a state in which to run an election in for a well known incumbent.

            BTW, I’d suggest getting the last Republican Governor of Maine (John R. McKernan, Jr.) to run against her in the Republican Primary, but he’s Snowe’s Husband. The other option would be Collins’ predecessor as the other Senator, but I think Bill Cohen after serving in the Clinton cabinet would not be all that palatable to those who want to primary Snowe.

  • johnCV

    The only problem I have is that the facts don’t matter anymore.

    If the Democrats move forward on trying to seat Franken before the whole process winds down, they will be, in essence, short-circuiting the judgement of the court with ?yes? answers to all these questions. Ultimately, the fundamental question that Democratic Senators will be voting that votes don?t have to be treated the same everywhere.

    Yup. And so what? The dems will do whatever it takes to win and the rep’s already know the game is rigged against them.

    Perhaps if we point out the hypocrisy of such notable scumballs as schumer, leahy, durbin, franken etc, people will become angered at them. Or maybe we should highlight the double standard promulgated in the media between dem and rep candidates, people will finally see the light.

    Sen Stevens was (allegedly) railroaded by a criminally (allegedly) prosecutor. Just before his election. He lost by a small margin. Now what? They won and we lost. They went for the jugular and we went the squishy middle.

    If we don’t take it to the leftists in the same manner as we get, we will continue to lose. There ain’t no principles in hand to hand combat other than to win. Either we admit that and act accordingly or quit whining about the outcomes. The Left views Conservatives as enemies to be destroyed, not as opponents to be beaten. They’ve got shumer and we’ve got specter.

  • passerby25

    Franken is ahead, by a margin that is basically impossible for coleman to overcome. how does that make it undemocratic to seat him? I understand that some of the ballots should have been counted, but chances are that they wouldn’t have made much of a difference. Besides, after the first recount, they had already taken care of most of the Absentee ballots.

    Might I add, as well, that Coleman was trying to stop them from rechecking the ballots when he was ahead. Not saying that it makes it right for Franken to do that now, but they already went through the process once, and I don’t see how Coleman expects doing the same thing over and over will come out with a different result.

    • bk

      is that in Democratic precincts they counted anything and everything, sometimes more than once. In Republican precincts they stuck to the rules. Of course that’s not 100% true, but in general if the rules were the same everywhere there likely would have been hundreds or more likely thousands more votes for Coleman or fewer votes for Franken – take your pick.

      • passerby25

        From what I understand, the board that was directing the recount was fairly bipartisan, and they even had a period in which they could choose to allow or deny unopened ballots to be counted, as well as challenge already counted ballots. My point is, if there was something nasty going on, it would have been raised either by Coleman While the recount was still going on, or the Canvassing board.

        • itrytobenice

          The whole time. And are now litigating it.

          And there were different standards in different areas. That is a problem. And the fact that Coleman wants to count the votes in a standard manner and Franken wants it just like it is tells you which side didn’t get their votes counted.

  • invalid10

    test

  • Swamp_Yankee

    Mass is a special election state. A new Senator needs to wait at least five months after a seat is vacated before they can be seated by way of an election. No one really wantes to talk about it, but by the time Franken gets seated, Uncle Ted will most likely be in rapid decline. I doubt he’ll be healthy enough to vote next session. The Dems want some time with Franken and TK together. Otherwise, there is a chance that TK’s demise will washout Franken’s vote.