Franken Camp Downplays Idea That They Want To Take Battle All The Way To The Senate
Here's the latest on the never-ending Minnesota recount: The Franken campaign appears to be downplaying the notion that his lawyers would want to take the recount battle all the way to the Senate, as they head into the next phase of this ongoing fight.
During a conference call just now with reporters -- held mainly to get out the campaign's message that the popular media methodologies to track the recount tallies are unreliable, because they take challenged ballots totally out of the count -- the subject of whether they would dispute the election at the Senate came up for a bit during the Q & A.
Franken's lead recount lawyer Marc Elias said that on occasions when he's referenced the Senate as a possible place to ensure that ballots are counted -- and those quotes have been a main source for this speculation -- he was really referring back to a top state official's statements that this could go to the Senate as a point of law. In other words, he was not implying that the Franken camp thought this would be their chosen route.
"We have said consistently that we are taking this one step at a time," Elias said, later adding: "The suggestion that there are these discussions, which I read about in the newspaper, that suggest more than that, I just think is jumping the gun."
The specter of taking this to the Senate is problematic, largely because it would put Senate Democratic leaders in an awkward position by raising the possibility of a bloody floor fight just as the Dem government is taking power in D.C. And on top of that, having the idea festering out there is probably bad P.R. as they pursue the recount.
There's simply no way the Senate is going to overrule the results unless to redress some obvious and serious flaw in the vote count. Based on what I've seen, the MN people are handling this superbly, and it's highly unlikely that there will be such a flaw. Once all the votes are counted, the loser is going to have very little recourse.
December 8, 2008 1:29 PM | Reply | Permalink
And why would this not go to the Supreme Court? Not that the SC has ever done anything resembling justice in these matters, but is that not the legal recourse?
December 8, 2008 1:53 PM | Reply | Permalink
They have no jurisdiction. The Constitution give the Senate final, un-appealable authority over whom it seats. (Ditto the House.)
December 8, 2008 1:55 PM | Reply | Permalink
Steve LaBonne,
You're right, naturally. But the constitution also gives the Electoral College and the House final jurisdiction over presidential elections, and that didn't prevent the then-Supreme Court from intervening on "equal protection" grounds that were obviously specious -- and that when the Chief Justice was an acknowledged expert on the electoral college. I wish I could agree with you that the Supremes will stay out of elections from now on, in most cases -- Roberts probably would rather not have his name come in for the mockery and vituperation that the Bush five have received from the constitutional law community -- but I'm not quite as sanguine as you are. The Constitution is open for interpretation, and once it's open, there's no limits to 'interpretation' in the hands of a motivated Supreme Court majority.
December 8, 2008 2:23 PM | Reply | Permalink
I disagree; they wouldn't be able to touch it even if they wanted to. This is TOTALLY different from a Presidential election because it's a separation of powers issue, and the Constitution is crystal clear about which branch has the power here.
December 8, 2008 2:34 PM | Reply | Permalink
I agree. The Supreme Court is not going to get involved in this at all. It's not a Presidential election.
December 8, 2008 2:45 PM | Reply | Permalink
It's not out of the question that the SCOTUS could get involved, if there were questions of, say, equal protection or discrimination.
Other than these broad, general questions of the right to vote, no it is not likely the SCOTUS would involve itself.
It's great that this recount has played out this way, it largely seems like it has been a fairly-run process. Too bad 2000 didn't work out this way.
December 8, 2008 2:52 PM | Reply | Permalink
And there is an Equal Protection question:
Some MN voters didn't sign their absentee ballot envelopes.
Some counties contacted such voters and let them come in and sign.
Other counties didn't contact such voters, but just rejected their ballots.
Should everyone get a second-chance to sign, as a matter of Equal Protection?
December 8, 2008 3:02 PM | Reply | Permalink
Who, exactly, will overrule them if they do decide to weigh in? Do you think that Harry Reid and the Dem caucus will suddenly grow a pair? There is no Constitutional authority granted to the SCOTUS to decide Presidential elections. None. It's entirely a state matter. The SCOTUS had no constitutional authority to overrule the Florida State Supreme court. The only reason they could make that stick is that no one had the cajones to stand up to them.
December 8, 2008 3:24 PM | Reply | Permalink
I don't think the Supreme Court would want to weigh in on something like this just from the differing concepts.
The Florida recount was about a state that was affecting the election of a national figure, in a different branch.
The Minnesota recount is about a state that is also electing an official to federal office, but this person is a representative of the state. It's the state officials and part of the legislative branch (U.S. Senate, last resort intervention) that are affected, so they should be the arbiters of a solution.
That's just an opinion, not fact, so don't go blasting me some misstatement contained therein.
December 8, 2008 4:32 PM | Reply | Permalink
"that didn't prevent the then-Supreme Court from intervening on "equal protection" grounds that were obviously specious"
FYI- The "Equal protection" part of the case was 7-2 that the FL court was wrong. 5-4 was on whether or not there was time for the FL courts to come up with a legal means for recounting by the deadline.
December 8, 2008 4:10 PM | Reply | Permalink
Thanks for the clarification. And yes, I see that there are some differences, and I agree that it's _unlikely_ that the Supreme Court would get involved. However, I don't think that the absence of the specific language justifying their intervention would stop them. For better or worse -- and sometimes it's each! -- we have a court that can find, if it wants, grounds to intervene in almost any dispute.
December 12, 2008 4:36 PM | Reply | Permalink
Sorry to be a broken record but yes it is out of the question, completely and utterly, as soon as the Senate seats one of the candidates. Article 1 Section 5: "Each House shall be the judge of the elections, returns and qualifications of its own members..." There's no wiggle room there at all.
December 8, 2008 2:57 PM | Reply | Permalink
The Democratic leaders in the Senate should state that they will support whichever result the Minnesota review process reaches. The idea that the Senate,comprised entirely of partisan politicians, would do a "better" job of reviewing thousands of disputed ballots than MN judges is absurd and would be regarded as such by the country. If Minnesota says Franken won, great. If not, we should accept the lesson that nominating comedians for important offices is probably not a good idea. But to have a Democratic dominated Senate vote on party lines overrule a MN ruling in favor of Coleman and seat Franken would be deeply poisonous and harmful to the Senate and the country.
December 8, 2008 4:16 PM | Reply | Permalink
A comedian ("Bedtime for Bonzo") was not only nominated for, but ELECTED to the presidency in 1980. Maybe we learned our lesson?
December 8, 2008 5:07 PM | Reply | Permalink