Everyone understands the ongoing saga involving Minnesota’s 2008 Senate election in broad outline. After leading by more than 700 votes on election night, the incumbent senator — Republican Norm Coleman — has emerged as the probable loser of the three-stage post-election proceedings. Senator Coleman lost nearly 500 votes during the first stage — the canvass — conducted by local officials tabulating votes immediately after the election. At the end of the canvass, Senator Coleman appeared to have won the election by 215 votes out of nearly 3,000,000 cast.
The closeness of the result led to the recount — the second stage of the post-election proceedings. With a margin within one-half of one percent, Minnesota law dictated a hand recount. The required recount is essentially administrative in nature. Minnesota law also provides for a judicial proceeding — the election contest — before a panel of three judges to resolve disputed questions of fact and law following the recount. The election contest is the third stage of Minnesota’s post-election proceedings.
During the recount Senator Coleman lost his narrow lead to Franken, coming out on the short end of a 225-vote margin. Senator Coleman has challenged the result of the recount in the election contest. The election-contest trial took place over seven weeks. The case is pending before the election-contest panel of three judges, but the result appears foreordained, based on rulings made to date by the panel. In all likelihood, the election-contest panel will declare Al Franken the winner, and Senator Coleman has already vowed to appeal the result to the Minnesota Supreme Court.
The erosion of Senator Coleman’s approximately 215-vote lead over Franken after the election canvass, and the emergence of Al Franken with a 225-vote lead over Coleman on January 5 after the recount, have given rise to the implication that Franken stole the election. The January 5 Wall Street Journal editorial “Funny business in Minnesota” is representative of this strain of commentary, which implies that Coleman has been a victim of Democratic shenanigans.
For a while, I thought so, too. If I had observed the events through the media outside Minnesota, I would still think so. As a Minnesotan with a closer view, with friends lodged in every corner of the post-election proceedings, I have a different perspective on the chain of events that has brought Coleman to his imminent loss to Franken.
From the day following the election, the Franken campaign understood it needed to conjure additional votes to prevail — thus the initial “count every vote” mantra that accompanied the litigation it commenced regarding the identification of “wrongly rejected” absentee ballots. The mantra ceased at the moment Franken took the lead, even though about 11,000 absentee ballots remained excluded for noncompliance with state law (about 4,000 of which, Coleman contends on equal-protection grounds, were wrongly rejected).
From the outset of the post-election process, the Coleman campaign was remarkably passive in its approach to the recount. The Coleman team appeared to improvise strategy from day to day and spent time spinning the Franken campaign’s activities. They did not appear to have a handle on what was happening or on what was likely to happen. I found getting information from the Coleman team like pulling teeth. For a while I thought they were withholding information for some reason. By the end of the recount, I concluded that they simply didn’t know what was happening.
Until the conclusion of the recount, Coleman acted a bit like an NFL team sitting on a two-point lead in the closing minutes of the fourth quarter. He could have been much more aggressive in protecting his position in the days after November 5. And to vary the analogy, the attorneys who publicly led Coleman’s team through the recount (local lawyers Fritz Knaak and Tony Trimble) appeared like Pop Warner players going up against an NFL team. When Coleman filed the election contest challenging the result of the recount, he brought in a new lawyer — the respected local criminal-defense attorney Joe Friedberg — to represent him in the election-contest trial. This has not proved a winning formula.
Media coverage of the recount has been so poor that it is difficult to ascertain what happened during the recount. It is particularly difficult to determine what happened when ballots were reviewed and counted by hand around the state. Both Coleman and Franken dispatched teams of observers to raise objections to disputed ballots at the various counting locations. As events were to prove, Franken had an effective team of observers.
The Board of Canvassers that was convened to preside over the recount and rule on challenged ballots conducted itself honorably under difficult circumstances. In addition to board chairman Mark Ritchie, the Man from ACORN who is Minnesota’s secretary of state, four judges served on the board: Minnesota Supreme Court Chief Justice Eric Magnuson, Associate Justice Barry Anderson, and Ramsey County District Court Judges Ed Cleary and Kathleen Gearin.
I have known Chief Justice Magnuson professionally for more than 25 years. Justice Anderson was my law-school classmate and is my friend. In my view, they are two of the best judges serving in the Minnesota courts. Although the board’s rulings on challenged ballots favored Franken during the recount, there was no noticeable partisan division among the board. Accordingly, the imputation of misconduct to the board such as is implicit in the Journal editorial is misplaced. Whatever inconsistencies the board committed in ruling on challenged ballots and other issues does not appear to have resulted from partisan mischief. In any event, the board’s ruling on challenged ballots put Franken up by only 49 votes.
The Franken campaign’s immediate recognition of the opportunity to “find” more votes with the “wrongly rejected” absentee ballots was crucial. It appears that the Coleman campaign erred when it failed to formulate its own countervailing strategy regarding the rejected absentee ballots. Perhaps most important, it should be noted that Franken’s margin expanded from 49 to 225 votes as the result of the inclusion of absentee ballots to which Coleman’s lawyers agreed.
Those who postulate Democratic shenanigans as the cause of Coleman’s difficulties fail to reckon with the December 18 decision of the Minnesota Supreme Court on the inclusion of previously rejected absentee ballots in the recount. The Minnesota Supreme Court held that absentee ballots identified by local officials during the recount as wrongly rejected should be included in the recount subject to agreement of the parties (and also subject to the possibility of sanctions on the parties’ lawyers for withholding agreement in bad faith).
The Coleman campaign had argued (correctly, in my view) that previously excluded absentee ballots should not be included in the recount. The Coleman campaign was caught flatfooted by the Minnesota Supreme Court’s December decision. Coleman should not have agreed to the inclusion of a single one of these ballots until he secured some agreement on the uniform treatment of absentee ballots. Instead, Coleman’s team agreed to the inclusion of 933 of 1,346 previously rejected absentee ballots identified by local officials during the recount as having been improperly rejected. (In the election-contest proceedings, incidentally, Coleman claims that 100 of the 933 absentee ballots to which it agreed should be excluded. One wonders what the responsible lawyers on Coleman’s team were thinking during the recount.)
In its December 18 decision, the Minnesota Supreme Court handed Coleman the key to the election. He promptly threw it away. When the absentee ballots were opened and counted at the conclusion of the recount, Franken’s margin climbed from 49 to 225, where it ended. Yesterday, Franken’s margin was amplified by 87 votes deriving from 351 absentee ballots opened in the election-contest proceedings.
I watched the opening of the 933 previously rejected absentee ballots online on January 4. Coleman lawyers Knaak and Trimble were visibly nonplussed by the results, which put Coleman in a hole sufficiently deep that there is no apparent way out. This result fixed the dynamics and, I believe, determined the ultimate outcome against Coleman.
This is not to say that Minnesota’s election practices have been vindicated in the post-election proceedings. They have proved flawed. Two hundred and eighty thousand Minnesotans cast absentee ballots on Election Day. Election officials rejected approximately 12,000 absentee ballots for noncompliance with Minnesota’s absentee-ballot statute. The evidence submitted by Coleman during the seven-week election-contest trial suggests that Minnesota’s absentee-ballot system is a Democratic Trojan horse. According to the Coleman campaign, the counties that are careful about applying the requirements of Minnesota’s absentee-ballot statute are Republican-leaning counties, while the lax ones are heavily Democratic.
Coleman contends that he comes out a loser only under a system that allows for Republican counties to apply a strict standard and Democratic counties to apply a lax standard to the counting of absentee ballots. He may be right, though the Franken campaign disagrees, and it has had an impressive read on the universe of rejected absentee ballots.
The election-contest court has simply followed Minnesota’s absentee-ballot statute. Arguing, as Coleman has, that a panel of judges should disregard the Minnesota absentee-ballot statute seems like a losing proposition, at least to me. Nevertheless, it is true that some absentee ballots counted on Election Day would have been ruled illegal and excluded by the three-judge election-contest panel. Unfortunately, there is no way to identify and uncount them.
The logical implication is that we may never determine who actually received more legally cast ballots. Coleman formulates the issue in terms of equal protection and urges a lowest-common-denominator approach to the inclusion of rejected absentee ballots as a matter of constitutional law, but I am afraid he may have identified a wrong without a legal (as opposed to a political) remedy.
I admire Coleman’s public service and believe he has been an outstanding senator. But since the election, the Coleman campaign has put on a performance that conveys a strong impression of complacency and ineptitude; the Franken campaign outhustled and outsmarted it.
Al Franken is a man with political views as ugly as his jokes are unfunny. He may also be the first U.S. senator to have joked about his past use of cocaine. In the 2002 oral history of Saturday Night Live assembled by James Miller and Tom Shales, Franken talked (pages 119–120) about using cocaine while pulling all-nighters writing for the show: “I only did cocaine to stay awake to make sure nobody else did too much cocaine. That was the only reason I ever did it. Heh heh.”
And I don’t think it can exactly be said that he won the election fair and square. Indeed, I can’t find a single good thing to say about him except that he didn’t steal the election.
– Scott W. Johnson is a Minneapolis attorney and contributor to Power Line.