Home › Blogs › Soren Dayton's blog ›

Democratic stategy for seating Franken clarifies, as does their dilemma

Submitted by Soren Dayton on Tue, 04/07/2009 - 12:27
in

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.

 

0
Your rating: None

Comments

So much for being the party of state's rights

Submitted by NextRightNando on Tue, 04/07/2009 - 13:29.

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.

So in other words, allowing the Minnesota Supreme Court to resolve the issue is not good enough? Becasue what you are doing in this sentence is dancing around the issue of Coleman dragging it into Federal court.

Elsewhere on this board there is thread where people are complaining about the Iowa Supreme Court ruling that a statute passed by the Iowa legislature is not consistent with the Iowa constitution.

What ever happened to Republicans being the party of state rights?

John Cornyn and the national party plan to bankroll "Team Coleman" to move the challenge to federal court - Cornyn is saying that the move to Federal court could mean that it will be "years" before Minnesota gets to seat their 2nd Senator. 

That is not going to play well with the voters in Minnesota - and, having lived in the region, I feel comfortable predicting some spill over into the media markets in Wisconsin, Iowa and the Dakotas.

On November 7. Norm Coleman, having received just 462 more votes than Al Franken, went before the cameras and did the following: (a) declared himself the victor; (b) called on Franken to not pursue a recount - even though the recount would be automatic under Minnesota state law in such a close election; (c) said that a recount would be too costly for the taxpayers; (d) said that it was not "the Minnesota way" to drag things out in court; and (e) said he would not use the courts to challenge the outcome if the results move in favor of Franken.Since that day every action he has taken has been in direct contravention of those words. His career is finished - he couldn't get elected dog catcher in Minnesota right now.Now consider the situation of Tim Pawlenty. He has to be considered as a prospective presidential candidate in 2012. But before he can get there, he has to get re-elected as Minnesota's Governor in 2010.

Coleman won't be able to drag this into federal court if Pawlenty certifies the election when the Minnesota Supreme Court inevitably rules in Franken's favor.

The national party is telling him to sit on his hands and let Coleman tilt at windmills in Federal Court. Possibly "for years". The voters of Minnesota will surely see right through this transparent attempt to keep Democrats one more seat away from the magic number of 60, and treat it with the contempt it deserves. Pawlenty's approval rating  has already dropped 10% since election day.  

yawn. they already said that

Submitted by RisingTide on Tue, 04/07/2009 - 13:21.

during florida, didn't they?  Democratic strongholds didn't get their recounts, but all the optical counties (republican) got theirs done quicker, so they got counted.

I disagree

Submitted by Ray in TX on Tue, 04/07/2009 - 13:27.

Coleman is merely tying this up in the courts as a stalling tactic, either to spite Franken or as part of a broader obstructionist plan by the GOP.

The recount is over. He needs to man up and concede the race and restore the state's proper representation in the Senate. 

After all, he was he one urging Franken to concede on the night of the election, before the state-required recount had even started. He is coming across as a sore loser at this point, clinging on to invalidated ballots that he had no desire in counting in November.

I'm No Constitutional Lawyer But

Submitted by ToddLuvsLounging on Tue, 04/07/2009 - 14:16.

if Norm is successful with his legal challenge, wouldn't that allow every loser in 2008 to challenge the vote since I don't know any state with a uniform vote counting system? Couldn't we end up with no government if every loser choses to challenge the vote...not that conservatives would mind. Talk about 'small government" if that were to happen.

Coleman's Team

Submitted by Jim Dandy to th... on Tue, 04/07/2009 - 15:19.

Ginsberg has really botched things up.

Nando above mentioned the Nov 7 strategy for Coleman, to assert victory in the face of factual contradiction.  Then, to try and game the process by trying to selectively include favorable precincts and counting methods, and next, as seen above, to try to move this as a Constitutional issue of Equal Protection to the SCOTUS since they will lose in SCOTSOMN..

I think SCOTSOMN will take this case and fast-track it, and we should have an answer by the end of the month.

Each one of these steps is profoundly dishonest, visibly so.  Each one of these steps has turned more and more Minnesotans against Coleman.

If I were on the Franken legal team, I would file suit with SCOTUS now, have them refuse to hear the case since it is clearly a State matter, and that would forestall Coleman games later on.

Don't think for a minute Roberts, Scalia, Alito, and Thomas have not already been issued marching orders by McConnell and Cornyn.  I'm hoping the other five Justices will refuse the case.

I would also add...

Submitted by Ray in TX on Tue, 04/07/2009 - 15:48.

it is precisely these kinds of "hardball" tactics that throw red meat to the base but harden all other voters against a party. The longer this drags on, the longer it will take for independent MN voters to get over it.

A party cannot espouse principles and then refuse to acknowledge something as fundamental as a majority vote simply because it did not go the way they would have liked.

However, the comment about 4 justices getting "marching orders" is completely unwarranted. The point of lifetime appointments to the court is precisely to eliminate that possibility.

SCOTUS

Submitted by Jim Dandy to th... on Tue, 04/07/2009 - 17:47.

Read Jeffrey Toobin's book, "The Nine" if you have any doubts as to whether the Supreme Court has become a Political body or a Judicial one.

The entire point of pushing for Roberts, Alito, Scalia and Thomas on the SCOTUS was to turn the Court as Conservative Right-Wing as possible.  There was soooo much hope on the Right that Bush would have a shot at appointing just one more...

These Conservative Justices are more political, and radically so, than any in recent memory, and they were expressly chosen for their youth as well as their Conservative ideology, to make sure the Right's influence on all SCOTUS decisions continues for decades.

Recent analyses of the past two SCOTUS terms have shown a marked turn to the right in the areas of pro-business decisions and affirmative action cases.

Thanks goodness that in cases like Boumedienne and others involving Guantanamo, even the Conservative justices have seen fit to do the right thing.

Pawlenty

Submitted by athensboy on Thu, 04/09/2009 - 19:25.

Can Pawlenty win the governors office in 2010 if he fails to certify Franken AFTER the Minnesota Supreme Court rules in favor of Franken? Seems to me Pawlenty would be playing with fire.