Guest Blogged by Ernest A. Canning

Author and former radio talk show host Al Franken, the Democratic challenger for the U.S. Senate seat in Minnesota, will be the state’s next U.S. Senator, according to a final tally by the bi-partisan three-judge panel overseeing challenger Norm Coleman’s election contest against him.

This morning in St. Paul, officials from the Minnesota Secretary of State’s office, under the in-court direction of the three-judge Election Contest panel in the former Senator’s contest against Franken, tallied all remaining lawfully cast absentee-ballots that were not previously opened and counted. This was done on camera, in open court. The attorneys from both sides, along with the media, were all present.

The final tally of the remaining ballots was 198 votes for Franken, 111 votes for Coleman and 42 votes for “other.” When this is combined with the initial 225 vote lead, certified by the bi-partisan State Canvassing Board in December, it adds up to a 312 vote Franken victory, arrived at by both a transparent, post-election hand-count late last year, and the additional tallies added under the painstaking care exercised by the three-judge panel in Coleman’s three-month long contest trial.

Al Franken has now won the U.S. Senate seat, but do Coleman’s promised appeal(s) stand a chance of winning? And will the Democrats in the U.S. Senate now assume their Constitutional right to dutifully seat the Senator from Minnesota?…

The Transparent, Painstaking Road to Victory

After Franken was unanimously declared the winner by a 225 vote margin on Jan. 5, 2009, by the bi-partisan Minnesota State Canvassing Board, Coleman filed notice he was contesting the election. The contest was assigned to a bi-partisan three-judge panel, which, during the span of a seven week trial, reviewed 19,181 pages of filings and 1,717 exhibits, and heard the testimony of 142 witnesses. The panel issued a key Feb. 13, 2009 ruling that expressly rejected [PDF] Coleman’s central legal argument contending the court should “accept the introduction of absentee ballot return envelopes and supporting materials en masse in accordance with categories [he had] identified.” Coleman’s position rested “upon the faulty premise that [he] could meet [his] burden…by proving that the reason for which the absentee ballot was rejected was not proper.” The court found that simply because an election official gave an erroneous reason for rejecting an absentee ballot, that did not mean that the ballot “was lawfully cast.” Proof that a ballot was lawfully cast must be made on an individualized basis, the court determined.

Last week, on March 31, 2009 the court issued another key ruling seen as unfavorable to Coleman’s case. Where he had claimed at the start of the contest that some 5,000 absentee ballots were improperly rejected, the court, after a painstaking, ballot-by-ballot review, directed that 400 previously unopened ballots be delivered to the court by yesterday, April 6, 2009 to be opened. A good number of these were previously unopened absentee ballots that Franken had sought to be opened. The court cautioned that some of these ballots may not be counted; that some were being opened because the court needed to see the originals to assure that they were lawfully cast.

Today, in open court, the remaining, uncounted, lawfully cast absentee ballots were carefully opened and tallied, giving Franken a final 312 vote victory out of some 2.9 million ballots cast in the election.

On Election Night, when he held a slender lead in the unofficial early count, Coleman said that if he were behind he would not so much as seek a recount because he thought “the need for the healing process is so important.”

Coleman to Appeal, But on What Grounds?

So the question now remains, what will Coleman now do? He could honorably, and finally, concede, but don’t hold your breath.

Based on statements made by his attorney, Ben Ginsberg, Coleman’s next step will be an appeal to the Minnesota Supreme Court. Almost from the moment the three-judge panel issued its Feb. 13, 2009 ruling, Ginsberg had begun stridently claiming that the election was “fatally flawed”; that the strict standards applied by the court for the opening and counting of absentee ballots designated by Coleman in the contest had not been uniformly applied by election officials throughout the state with respect to the more than 280,000 absentee ballots that had been previously opened and counted. Referencing Florida 2000’s controversial U.S. Supreme Court ruling in Bush v. Gore, Ginsberg contended Coleman was denied equal protection.

As both the Franken legal team, and the three-judge panel, observed, Ginsberg’s equal protection argument is fatally flawed. For starters, there is a serious issue of waiver. Coleman did not challenge the lawfulness of the previously counted absentee ballots either during the post-election hand-count or in his notice of contest.

The three-judge panel observed [PDF] that Bush v Gore was based on questions arising under “Florida’s basic command…to consider the ‘intent of the voter.’ The United States Supreme Court found that while this principle was ‘unobjectionable as an abstract proposition…the problem inheres in the absence of specific standards to insure its equal application.'” Minnesota’s objective standards for opening and counting absentee are specific, clear, and unmistakable.

Franken’s legal team argued [PDF] that imperfect application of these clearly delineated standards by local election officials does not “constitute a constitutional violation. Not only would this result in an untenable rule that would make democratic and federalist government impossible; it finds no support in the case law. Rather, courts have consistently refused to find constitutional violations due to errors or inconsistencies, where clear state standards exist.”

Under Minnesota law, the governor is ordinarily required to prepare an original certificate of election, countersigned by the secretary of state, after the recount is completed, unless a contest is filed. In a March 6, 2009 decision, Franken v. Pawlenty [PDF], the Minnesota Supreme Court ruled that, where there is a contest, no certificate can issue, “until a court of proper jurisdiction has finally determined the contest.”

On 4/6/09 Mike McIntee of TheUptake.org reported that Minnesota’s Republican Governor Tim Pawlenty said he may not sign the certification for Al Franken’s victory — both he, and the state’s Democratic Sec. of State Mark Ritchie, are required to do so — until all appeals are exhausted even after a decision by the state Supreme Court. If so, this would be at odds with his previous legal position. The Court in Franken v. Pawlenty stated:

If my reading of the Minnesota contest statutes is correct, however, Pawlenty may have already been removed from the equation. The pertinent provision, section 209.12, not only limits the question to be decided in a contest to “which party received the highest number of votes cast and is therefore entitled to receive the certificate of election,” but states:

This raises a question as to whether there would even be a need for the governor’s certification. Regardless, the issuance of a certificate is a ministerial act. After denying Coleman’s appeal, which is likely, the Minnesota Supreme Court could simply order Pawlenty to certify. Coleman could then prevent certification only if the U.S. Supreme Court issued an immediate stay as it was deciding whether to hear the case.

The combination of what I regard as a frivolous equal protection argument and the fact that four Justices of the U.S. Supreme Court are associated with the radically subversive Robert Bork-founded Federalist Society raise a truly disturbing potential. As I noted in “Prosecute or Perish” here at The BRAD BLOG the Federalist Society is committed to a hard-right agenda. While a majority of five Justices are needed to prevail in the U.S. Supreme Court, only four are needed to decide that a case should be heard.

Make no mistake. The Coleman legal challenge is being driven by the same hard-right movement that brought us eight years of the lawless “Unitary Executive” regime of George W. Bush. The hard right is a “revolutionary power”; billionaire-funded, anti-egalitarian ideologues dedicated to smashing the existing constitutional framework.

While the hard right recognizes its equal protection argument is bogus, it succeeds if it prolongs its ability to obstruct efforts to unravel the damage it caused over the past eight years by delaying the seating of a 59th member of the U.S. Senate’s Democratic Caucus. It’s an echo of the Clinton years when the hard-right bottled up Clinton judicial appointments, taking the long view towards a day when the Bush regime could fill vacancies with “radicals-in-robes.” Thus we find Senator Tom Coburn (R-OK) stating, “The battle in Washington is real. Every day in the Senate without Al Franken is a great day.” Sen. John Cornyn (R-TX), chair of the Republican Senatorial Campaign Committee (RSCC), confirmed their caucus’s anti-democratic intentions recently, threatening “WWIII” if Senate Democrats attempted to seat Franken.

Yet, it is the Senate to which both Franken and those who support democracy should now turn. As the Minnesota Supreme Court observed in Franken v Pawlenty, “the authority of the Senate under Article I Section 5 [of the U.S. Constitution] is plenary, and the Senate is therefore free to seat Franken if it so chooses…” It can do so with or without certification.

Constitutional democracy cannot allow its future to be placed into the hands of the Court which gave us Bush v. Gore. While there may be some room for reasonable minds to disagree on whether the Senate should wait for a Minnesota Supreme Court ruling (I would certainly invite readers to weigh in on the subject), I believe that democracy should not have to wait another day. The U.S. Senate should immediately take up the issue of seating Al Franken as the duly elected Senator from Minnesota.

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Ernest A. Canning has been an active member of the California State Bar since 1977 and has practiced in the fields of civil litigation and workers’ compensation at both the trial and appellate levels. He graduated from Southwestern University School of Law, where he served as a student director of the clinical studies department and authored a Law Review Article, Executive Privilege: Myths & Realities. He received an MA in political science at Cal State University Northridge and a BA in political science from UCLA. He’s also a Vietnam vet (4th infantry, Central Highlands 1968).