Senator Al Franken

A ruling by the Minnesota Supreme Court has all but officially made Al Franken the winner in the Senate recount.

A state Supreme Court ruling Wednesday narrowed the options available for Sen. Norm Coleman to erase a slim lead held by DFLer Al Franken in the Minnesota election dispute, and Coleman’s campaign threatened a court battle that could leave the Senate seat vacant for a month.

The Supreme Court denied a bid by the Coleman campaign to prevent local and state canvassing boards from tallying votes that the incumbent says may have been counted twice. Most of the votes at issue are from DFL strongholds. The justices said the campaign’s claim of double-counted ballots is better resolved in a court hearing where evidence can be presented, instead of by canvassing boards.

I have no opinion on the merits of the ruling but this leaves Coleman’s last recourse as a challenge which, as Eric Kleefeld puts it, has a “burden of proof that heavily favors the certified winner.” Unless Coleman can prove that ballots were in fact counted twice — and I have no idea how he’d do that — Franken will be the winner.  Nate Silver notes that, “while it is nearly guaranteed that there were at least some instances of double-counting, the same discrepancies could be explained by other phenomena, an Coleman’s case relied on what might could best be described as circumstantial evidence.” (Scott Johnson provides additional background on the statutory law.)

As I’ve noted since this farce began, the race is a tie and none of us knows whether Coleman or Franken truly got more legitimate votes. Given that Coleman “won” on the initial count, though, his supporters will quite reasonably feel as if the election was stolen from them in a bizarre, dubious process.

We have to have a better system than this.

FILED UNDER: Campaign 2008, Contests, Law and the Courts, Popular Culture, US Politics, , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. DC Loser says:

    Given that Coleman “won” on the initial count, though, his supporters will quite reasonably feel as if the election was stolen from them in a bizarre, dubious process.

    Substitute “Coleman” for “Gore.” We’ve seen this before.

  2. James Joyner says:

    Substitute “Coleman” for “Gore.” We’ve seen this before.

    Except, of course, that Bush won the intial count, the second count, and the final count. But, yes, the process of recounting and contesting and judging rendered a close election into a stolen one for about half the country.

    As I say, the process itself is broken. Once you start having post hoc human judgment — by interested actors, no less — people lose confidence.

  3. Bithead says:

    Well, you’re both correct, James, and I begin to suspect that what Loser is talking about is a new method for winning elections cooked up by Democrats. Right, Loser?

    (mumble)

    We have to have a better system than this.

    Can anyone point to national offices being overturned by recount before 2000? Can anyone remember even such challenges happening?

    Perhaps what we’re dealing with isn’t that the systems were deficient all along, it’s that they were sufficient for honest people. Clearly, the system wasn’t designed for Al Gore and Al Franken.

  4. Keep counting until you get the desired result and then declare the recounts officially over.

    Hard to feel good about this no matter how it turns out, but what Al Franken has done (and what Al Gore tried to do) to win does not bode well for the future of representative democracy. Throw in the recent nepotism and the appointed aristocracy to hasten our demise.

  5. odograph says:

    Can anyone point to national offices being overturned by recount before 2000?

    More likely they were decided in a back room somewhere. (Merry Christmas)

  6. Eric says:

    As I’ve noted since this farce began,

    C’mon, James. You know darn well that if the situation had been reversed, Coleman would’ve been lauding how fair the process was. This is precisely why states have in place procedures for dealing with close elections. Granted, maybe there could be a better way to do this, but I wouldn’t say what’s transpired in Minnesota has been outrageous or out of line. In fact, I think the Canvassing Board has dealt with the matter quite transparently, and you already know courts in general are reluctant to get too involved in these decisions, preferring instead to leave political questions to the political actors.

    Once you start having post hoc human judgment — by interested actors, no less — people lose confidence.

    How about robots programmed by “interested” programmers, like Theodore’s bots on Word Girl? Seriously, I’m not sure how you get around human judgment in any case. I do agree that people will lose confidence to some degree, but I just don’t see a way around human judgment at some point.

    Well, you’re both correct, James, and I begin to suspect that what Loser is talking about is a new method for winning elections cooked up by Democrats. Right, Loser?

    Perhaps what we’re dealing with isn’t that the systems were deficient all along, it’s that they were sufficient for honest people. Clearly, the system wasn’t designed for Al Gore and Al Franken.

    Yes, people in general and conservatives in particular have always been totally honest and above-board and never been nasty or contested elections. Only those dirty liberals do that. And if it didn’t happen before 2000, well, that must be proof that the process is broken. Up till then, elections were fair and clean with fairies and magic ponies. Please.

    Hard to feel good about this no matter how it turns out, but what Al Franken has done (and what Al Gore tried to do) to win does not bode well for the future of representative democracy. Throw in the recent nepotism and the appointed aristocracy to hasten our demise.

    Yeah, contesting an election is so much more dangerous to democracy, than, say, arrogating so-called Unitary Executive powers to torture, or abuse Executive Orders to get around Congress, or surveil Americans unlawfully. Those are just minor quibbles; but contesting an election, boy, that’s just unheard of.

    Bitsy, Chuck, perhaps the larger argument James makes is that if the process is indeed broken, it can’t be broken just for Franken/Coleman, but also for Bush/Gore. If people lose confidence because of “human judgment,” as James says, then it must be the same for both cases and elections in general. You can’t argue that the Franken/Coleman race is a farce, but that Bush/Gore was decided rightly. In both cases you still have people making arguably unpopular decisions. But you two seem to want it both ways–though I’m not surprised.

  7. ggjr says:

    What’s undemocratic or dangerous about contesting an election? It strikes me that the opposite would be the dangerous condition – not allowing announced election results to be examined.

    The problem is the way votes are tallied, not requiring accountability.

  8. ken says:

    Whoever wins the Minnesota Senate race is going to be the legitimate winner. The system worked. The race was close and every effort was made to count every single ballot.

    This is unlike Florida in 2000 when the Republican machine did everything in its power to prevent ballots from being counted. The voters were not respected by the Gore people either as he never championed the position that every single vote in the state needed to be counted. It was a fiasco and the winner was eventually decided by five conservative republicans on the US Supreme Court. This made the Bush presidency illegitimate.

    The key is in respecting the voters and doing whatever is humanly possible to discern the will of of the voter on each ballot cast. Sometimes it is easy to do, sometimes it is not so easy. But that is what makes a government or an elected official legitimate in the eyes of the people.

  9. Drew says:

    Merry Christmas from the warmth of Hawaii

    The process is indeed mess, but I’m more stunned that the great State of Minnesota has now seen fit to elect a wrestler and a B grade comedian to serious public office. Now THAT’s a broken process.

    It must be the cold air.

  10. Bithead says:

    Yes, people in general and conservatives in particular have always been totally honest and above-board and never been nasty or contested elections.

    I await with interest your listing of where they’ve not been so, but I won’t held my breath.

  11. Bithead says:

    Bitsy, Chuck, perhaps the larger argument James makes is that if the process is indeed broken, it can’t be broken just for Franken/Coleman, but also for Bush/Gore.

    Of course! And Gore nearly got away with it, too.
    Apparently, they’ve figured out what they did wrong, that time, and improved on the process.

  12. Anon says:

    Is there a sense that the situation is worse than it has been in the past? If so, it might be interesting to think of some reasons for it.

    One reason might be that polling and information flow has improved, which allows politicians to triangulate better. This results in closer elections, overall, which results in more recounts, especially very close ones. All of which, obviously, work towards revealing how badly the system is broken.

  13. Zelsdorf Ragshaft III says:

    Funny how Republicans win on election day, but Democrats seem to win a recount. Wonder why that is? Cheating anyone? Someone should string Frankenstein up.

  14. Bithead says:

    Ummm no;

    One reason might be that polling and information flow has improved, which allows politicians to triangulate better. This results in closer elections, overall, which results in more recounts, especially very close ones. All of which, obviously, work towards revealing how badly the system is broken.

    Sorry, I’m not buying that one. What is the added info flow going to do? It’s going to move public opinion, not the vote count.

  15. charles johnson says:

    While the election was essentially a tie, with the recount probably being a more deliberate, and therefore accurate, process, I’m just glad Coleman’s out. Coleman’s wrong on Iraq, Social Security, gays, abortion, stem cells, and drugs. Franken has better values than that.

  16. Brett says:

    This is why every state should have run-off elections for this type of thing. Compare the farce that this has become with the now-settled race between Saxby Chambliss and the other guy in Georgia.

  17. Floyd says:

    To quote Gomer Pyle…. SURPRISE! SURPRISE! SURPRISE!??

    Democrat mantra …Keep countin’ ’til you win!

    Illinois should have elected “BOZO The Clown” when they had the chance!
    OH Well, we had Garfield Goose “The King of the United States”!![lol]

  18. Raoul says:

    Bizarre and dubious? How so? Do you advocate no recounts? And for you to invoke Florida? Well perhaps you liked that process because the S.Ct. stopped the recount. Now, there is no doubt that not all ballots are counted election day (military, absentee, misplaced, challenged)-but like a typical conservative-instead of promoting a solution you only find a way to be critical. Like I always say =it depends on whose ox is being gored.

  19. Drew says:

    “with the recount probably being a more deliberate, and therefore accurate, process”

    Wow!! From the reports I’ve seen, that’s like calling sausage making “the fine art of carvery.”

  20. tom p says:

    Except, of course, that Bush won the intial count, the second count, and the final count.

    Except of course, that had there been a real re-count, Gore would have won. As I recall (admittedly, my memory is a little sketchy) Gore won Florida (if they had done a recount of the complete state, it would have shown that)(as per the NYT) Gore’s mistake in the lawsuits that followed, was to ask for recounts only in the Dem leaning districts.

    Apparently, they’ve figured out what they did wrong, that time, and improved on the process.

    Yeah, Bit, they figured out that they need to count ALL the votes, What a concept, eh?

    Yes, people in general and conservatives in particular have always been totally honest and above-board and never been nasty or contested elections.

    I await with interest your listing of where they’ve not been so, but I won’t held my breath.

    You can breathe again Bit, you are example #1.

    Funny how Republicans win on election day, but Democrats seem to win a recount. Wonder why that is? Cheating anyone?

    Zelsdorf: Yes, I do wonder how it is, that when they actually count the ballots, Republicans always lose… Any body else detect a pattern here?

    To quote Gomer Pyle…. SURPRISE! SURPRISE! SURPRISE!??
    Democrat mantra …Keep countin’ ’til you win!

    Floyd, are you even listening to yourself? Once you you get what ya want, STOP!!!

    Hard to feel good about this no matter how it turns out,

    Indeed Bit, because as ggir said:

    What’s undemocratic or dangerous about contesting an election? It strikes me that the opposite would be the dangerous condition – not allowing announced election results to be examined.

    Let us get real: No matter what happens, somebody is going to b*tch. What do we do? As one who did not like the results in Georgia, I can not argue with them. Chambliss won.

  21. James Joyner says:

    Except of course, that had there been a real re-count, Gore would have won. As I recall (admittedly, my memory is a little sketchy) Gore won Florida (if they had done a recount of the complete state, it would have shown that)(as per the NYT) Gore’s mistake in the lawsuits that followed, was to ask for recounts only in the Dem leaning districts.

    Here’s what Wikipedia says:

    The media reported the results of the study during the week after November 12, 2001. The results of the study showed that had the limited county by county recounts requested by the Gore team been completed, Bush would still have been the winner of the election.

    The Florida Supreme Court had ordered “counting of the legal votes contained within the undervotes in all counties where the undervote has not been subjected to a manual tabulation.” The U.S. Supreme Court overruled the Florida Supreme Court and stopped their recount via an unsigned “per curiam” opinion in Bush v. Gore, with three Justices (Rehnquist joined by Scalia and Thomas) concurring in a separate opinion. Four Justices (Stevens, Souter, Ginsburg, and Breyer) each wrote their own opinion with various combinations of the other three joining.[3]

    The media recount study found that under the system of limited recounts in selected counties as was requested by the Gore campaign, the only way that Gore would have won was by using counting methods that were never requested by any party, including “overvotes” — ballots containing more than one vote for an office. While some of these ballots recorded votes for two separate candidates, a significant number (20 percent in Lake County, for example) were cases of a voter voting for a candidate and then also writing in that same candidate’s name on the write-in line. A judge supervising the recount told the Orlando Sentinel that he had been open to the idea of examining the overvotes, and had been planning to discuss the matter at a hearing when the U.S. Supreme Court stopped the recount. According to Mickey Kaus of Slate.com (emphasis in original), “If the recount had gone forward Judge Lewis might well have counted the overvotes in which case Gore might well have won.”[4]

    The New York Times did its own analysis of how mistaken overvotes might have been caused by confusing ballot designs. It found that the butterfly ballot in heavily Democratic Palm Beach County may have cost Gore a net 6286 votes, and the two page ballot in similarly Democratic Duval County may have cost him a net 1999 votes, each of which would have made the difference by itself.[5] The rest of the media consortium did not consider these because there could be no clear determination of a voter’s intent.

    So, the only way Gore would have won would have been to illegally count ballots.

  22. Raoul says:

    JJ: Amazing how selective you are. The media consortium counted the ballots seven different ways. Gore won 4, Bush 3. The broadest manner, as mandated by the Florida S.Ct. in determining voting intent, had Gore winning. And this has nothing to do with butterfly ballots-there there was no issue of intent since the ballots were clearly marked for Buchanan. And you totally are misinformed on over-votes. Those are ballots that carried two markings for the same candidate and were disqualified. Under the voter intent law, those votes should have been counted. So in fact it is accurate to say Gore would have won Fl if but for the US S.Ct. intervention. As to you, it is shameful how you misinform readers.