Excellent provision in MN law requires election challenges settled before U.S. Congress is given jurisdiction over Senate seat

PLUS: Some free advice for Coleman's election contest court challenge...

Brad Friedman Byon 1/5/2009, 2:28pm PT

-- Brad Friedman, The BRAD BLOG

The state canvassing board in Minnesota has now certified Al Franken (D) as the winner over incumbent Sen. Norm Coleman (R) in the race for the U.S. Senate. Barring a successful legal challenge, which has now been filed by Coleman, Franken will have won the seat by an astoundingly close 225 votes, out of some 2.9 million cast.

But there's still a chance, albeit a slim one, for Coleman to reverse his fate. A very good provision in MN's law --- not found in most other states --- may delay Franken's seating, meaning he will not be sworn in with rest of Congress at the beginning of the new session slated to start tomorrow. Ultimately, however, the provisions should ensure that whoever is eventually sworn in to serve as the state's Senator will not be forced to serve under a cloud.

The voters of MN deserve that much, no matter how long it takes, and thankfully, like its hand-count laws, the state's provision requiring the completion of legal challenges before final certification is sent to Congress by the Sec. of State, is a model for the nation.

Would that all of the other states in the union had such a provision...

Readers of The BRAD BLOG may well remember the brouhaha following the special election, in the Summer of 2006, to fill the U.S. House seat vacated by Randy "Duke" Cunningham (R) after he was convicted on bribery charges. The election between Brian Bilbray (R) and Francine Busby (D) in San Diego's 50th Congressional district --- seen at the time as a bellwether for the impending fall elections --- was an embarrassment, as both federal and state law was violated in the race by the use of electronic voting systems which, due to San Diego's election procedures, were effectively decertified for use.

With thousands of votes left still-uncounted by the electronic Diebold optical-scan voting systems (used in violation of the law after they were sent home on unsecured "sleepovers" with poll workers for days prior to the election), Susan Lapsley, then Asst. Sec. of State under Republican SoS Bruce McPherson, faxed a hasty certification to the then Republican-controlled U.S. House of Representatives declaring Bilbray the winner of the race.

The Republican operative Lapsley's certification was sent despite legal challenges being mounted to contest the results of the election. Then, following a letter [PDF] sent to the judge presiding over election contest by the attorney for the Republican chair of the U.S. House Administration Committee, claiming the U.S. Constitution gave sole authority to Congress, and Congress alone, whether or not to seat Bilbray, the case was dismissed on jurisdictional grounds. Neither the voters, nor the courts of California, it was decided, would be allowed to determine who actually won the seat under state law.

It was outrageous, but in apparent accordance with both state law and the U.S. Constitution...at least according to the House Republicans who rushed to swear Bilbray in as soon as possible, and the state courts who, as is often the case, look for any reason to stay out of election-related matters.

The Republican Bilbray "won" the seat, essentially because CA's Republican Sec. of State (illegally) rushed certification to the Republican-controlled U.S. House who claimed complete Constitutional jurisdiction to seat the member of their choice (who just happened to be the Republican).

Thankfully, and with great respect to the voters of MN, the state's law requiring the completion of legal challenges before final certification is sent to Congress, should help stave off such an outrage by avoiding the ability of a Democratic U.S. Senate candidate to be certified by a Democratic SoS (the state's Mark Ritchie), only to be seated by a Democratically-controlled U.S. Senate claiming absolute Constitutional authority over the seating of the candidate of their wishes.

The Republican candidate, and the voters of the state, deserve to see the completion of all all possible challenges to the result of the election before they are robbed of their jurisdictional rights over who represents them in Congress. It's a pity the same courtesy was not given to the voters of San Diego in the CA50 race, but at least --- barring any surprises --- that same outrage should not happen in MN.

If that means a further delay before MN has its new Senator sworn in, so be it. At least once they get their Senator, every voter in the state should know that every reasonable doubt concerning the election of that Senator has been resolved legally by the voters and courts of the state itself, accurately and transparently.

Would that every voter in the U.S. was afforded the same courtesy in every race for the U.S. Congress.

By the way, as irony would have it, MN's likely next Senator, Al Franken, was a radio host on Air America at the time of the Busby/Bilbray brouhaha in California. And though Franken actually came to San Diego, to broadcast at DFA's DemocracyFest that year, which happened to take place at the height of the scandal, he refused to discuss the issue substantively and even refused to have this reporter on air to discuss it, even though we happened to be in San Diego at the time, and had been the one to break the story originally. The result: when the matter did come up during a live broadcast featuring a guest who was a so-called reporter from the Rightwing Union-Tribute, Franken was booed by the live studio audience, on live radio, for dismissing the matter out of hand.

Coleman's Last Chance and Some Free Advice...

Coleman will now have seven days, under Minnesota law, to file an election contest, now that the certification has been finalized by the state board. While his attorneys have already signaled their intent to file such a contest, and challenge the counting of a number of improperly rejected absentee ballots, as well as several ballots that they contend may have been counted twice (there is no such evidence that we're aware of to back up their claim on that score), there are two other points the Coleman team may wish to bring to court with them. This free advise is given, even though the Coleman camp ran an outrageous and offensive (if ultimately unsuccessful) FL 2000-style post-election campaign to try and keep thousands of legitimate votes from being counted at all.

We've pointed out both of these issues in more detail previously, but they are worth noting again since they've a) apparently been ignored so far by both Coleman and Franken and b) could have a significant impact on all future elections across the entire country.

1) Coleman's team should demand that all memory cards and hard drives from the flawed electronic voting systems used in MN be securely retained for a full 22 months under the federal law that requires the retention of all such election materials. Memory cards and hard drives from such systems are routinely erased or deleted after results have been finalized, but they should not be. If there are any questions for the next 22 months about the way the systems tallied votes, those elements of the system should be available to forensic investigators. That they are not, is a gross oversight by election officials. A court finding that such equipment should be kept security, as per federal law, following all elections would be a gift to the nation.

2) MN, and their Sec. of State Mark Ritchie, deserves much applause for fully transparent way in which their post-election hand-counts are carried out. The state's provisions for same are among the very best in the nation. That said, the fact that reconciliation of unvoted ballots are not generally a part of any jurisdiction's recount laws is a tremendous oversight in such procedures. One of the likeliest ways to game a paper-ballot election is with the use of unvoted ballots, either using them to stuff the ballot box, or otherwise replacing legitimately voted ballots.

We've previously called on both the Coleman and Franken campaigns (along with any other party involved in a post-election hand-count) to file public records requests for printer invoices of printed ballots. The number of ballots, as shown as having been printed on those orders, should be exactly equal to the number of voted, spoiled and unvoted ballots counted after the race. If they aren't, that may well signify a problem. Unfortunately, most post-election counts don't even bother to account for unvoted ballots, much less count them to make sure they are all there. Coleman's campaign, as any other challenging an election, would be well-advised to take the appropriate steps to assure proper reconciliation of all ballots printed for use in the race.

CORRECTION: We originally named Francine Busby's Republican opponent in the CA50 House race as Vern Buchanan. In fact, her opponent was Brian Bilbray, so we've made the appropriate correction. Buchanan was the Republican who was sworn in as a U.S. Congressman in Florida's 13th district after 18,000 votes disappeared on ES&S touch-screen voting machines in Sarasota, FL in the 2006 general election. The final margin of "victory" over his Democratic opponent Christine Jennings in that race was some 369 votes. The BRAD BLOG regrets the error, and will strive in the future to keep our contested elections straighter.



