Senate Could Make Interim Appointment If Coleman-Franken Race Challenged

Al Franken’s campaign said Wednesday that it will not appeal a decision by Minnesota’s state canvassing board not to include absentee ballots that Franken’s campaign says were wrongfully rejected in the recount between the former Saturday Night Live comedian and Republican incumbent Norm Coleman.

But Marc Elias, Franken’s lead recount attorney, said in a conference call with reporters that the campaign may challenge the canvassing board’s decision in court if the panel, which is scheduled to meet again next week on the matter, upholds its decision.

“We are not going to appeal” the canvassing board’s ruling, Elias said. But “I’m not going to take anything off the table. We’re going to take this one step at a time and see what the canvassing board has to say.

“We are encouraged that the board is going to have further deliberations next week, preventing at least some of the absentee voters from being disenfranchised, including those rejected for obvious errors.”

The state canvassing board must certify the contest and declare Coleman or Franken as the winner before one of them can take the Senate seat by the time the 111th Congress is seated in January. If the race is still undecided or if the loser challenges the recount then the full Senate or Minnesota Gov. Tim Pawlenty can make a temporary appointment to fill the vacant seat.

“In that case…. Pawlenty could fill the seat with a temporary appointee, said Jim Gelbmann, the deputy secretary of state,” the Wall Street Journal reported. “The Senate also could fill the seat with its own choice, but that is unlikely because of the political uproar it could cause.

Steven Smith, a Washington University political scientist, told Minnesota Public Radio Friday that the U.S. Constitution gives the Senate the power to determine who it’s members will be and has on several occasions ignored a state’s election results when a candidate has challenged the integrity of the ballots. 

“Ultimately, the Senate has complete authority to determine who was elected,” Smith told MPR. “There is a motion under Senate rules and precedents that allows any Senator to make a motion to refer the credentials to a committee, presumably the Senate Rules and Administration Committee, which has jurisdiction over election matters, in order to delay action on it.”

In his interview with MPR, Smith cited a 1974 election dispute in New Hampshire where 35 ballots were in dispute. After a few recounts, the Senate moved to have the Democrat in the contest seated. But Republicans filibustered the move and six months later the Senate declared the seat vacant and ordered a revote, which the Democrat won.

“The chances of such an amicable settlement seem slim in Minnesota, where the candidates have turned out hundreds of lawyers and volunteers to monitor the recount. In perhaps the largest hand recount ever, two election officials count the ballots into piles of 25, then hand them to another pair of officials to count again as campaign workers count along,” the Journal reported.

The Associated Press reported that the “Senate has in rare cases inserted itself into elections, including a 1996 Louisiana race and a 1974 New Hampshire contest.The body has the power to determine its members’ qualifications.”

Cullen Sheehan, Coleman’s campaign manager, said if Franken loses the election after the recount is complete he should not challenge the results in court and he should promise Minnesotans “that he will not allow this election to be overturned by the leadership of the Democratic Senate.” 

Senate Minority Leader Mitch McConnell also warned his colleagues not to get involved in the contest.

“The recount process in Minnesota is being handled by Minnesotans, not D.C. politicians,” McConnell said. “And while neither side will agree with every twist and turn or every decision, I would hope that Washington partisans would refrain from injecting themselves into what is, by design, a non-partisan process.”

Coleman led Franken by 725 votes immediately following the Nov. 4 election. The razor-thin margin between the candidates resulted in an automatic recount, which Minnesota state law says is triggered if the margin of victory is less than half of 1%.

Coleman held a 215-vote lead going into last Wednesday’s recount, which election officials are now conducting by hand. Minnesotans cast ballots counted by optical scan voting machines. As of Tuesday evening, Coleman led Franken by 282 votes out of 2.9 million ballots cast, with 88 percent of the recount complete, according to unofficial results released by state election officials.

At issue now is 12,000 absentee ballots, out of 288,000 absentee ballots cast in the Nov. 4 election, a state record, that Minnesota election officials rejected for a variety of reasons. The Franken campaign said it has obtained affidavits and information from local election officials that some of the absentee ballots were improperly rejected.

Franken campaign attorney David Lillehaug presented the canvassing board with sworn affidavits from Jessup Schiks, Bruce Behrens, James Langland and Ordell Adkins, all of who voted for Franken via absentee ballot and had their ballots rejected on “technicalities,” such as signatures that didn’t match ones that were on file with the state or inconsistent mailing addresses.

In the case of Langland, who voted by absentee ballot prior to Nov. 4, in person, at his local election office, because he said he was going to be out of town on Election Day. However, his ballot was rejected due to the absence of a witness signature.

“Dr. Langland did everything correctly,” said Mark Elias, an attorney working with the Franken campaign on the recount, during a press conference Monday in St. Paul. “He actually went to the recorder’s office and asked them to witness the signature. And due surely to human error and nothing more, it resulted in it being rejected.”

The five-member canvassing board, which is chaired by Secretary of State Mark Ritchie, two district judges and two Supreme Court justices, met Wednesday to consider a legal brief from Franken’s campaign about the issue, but unanimously ruled that it did not have the legal authority to include absentee ballots in the recount unless instructed to do so by a judge.

“Irregularities, if any, in the handling of those absentee ballots can be addressed in the election contest process provided by law,” which would take place in a court of law when the recount is complete, said Supreme Court Justice G. Barry Anderson, a member of the canvassing board.

But Ramsey County District Judge Kathleen Gearin said it’s clear that “as the days go by” a handful of votes “are becoming more and more important” and that it would be “absurd to argue against” counting absentee ballots.

However, she added that the canvassing board does “not have the authority to review rejected absentee ballots. That’s the bottom line.”

Last week, in a three-page opinion issued to Ritchie on the matter, Minnesota Assistant Attorney General Kenneth Raschke Jr. said the canvassing board is “not to determine if absentee ballots were properly accepted.”

That’s for a judge to decide, Raschke said.

“Courts that have reviewed this issue have opined that rejected absentee or provisional ballots are not cast in an election,” Raschke wrote. “Only the ballots cast in the election and the summary statements certified by the election judges may be considered in the recount process.”

But Franken’s attorneys said Raschke’s opinion contains “significant error.”

“In fact, both state law and key decisions from other states require that improperly rejected absentee ballots be included in the recount of an election,” says the seven-page legal brief Franken’s attorneys filed with the canvassing board Tuesday. “The Board can, and should, make it clear that those ballots can and should be included during the course of this recount.”

Senate Majority Leader Harry Reid weighed in on the issue Wednesday, issuing a statement that said the canvassing board’s decision is a “cause of great concern.”

“As the process moves forward, Minnesota authorities must ensure that no voter is disenfranchised,” Reid said in a statement. “A citizen’s right to have his or her vote counted is fundamental in our democracy.”

A Franken victory would give Democrats 59 seats in the U.S. Senate. There is still an undecided senate race in Georgia where a runoff between incumbent Republican Saxby Chambliss and Democrat Jim Martin is scheduled for Dec. 2. A Democratic victory there would provide the party with a 60-vote filibuster-proof majority.

The canvassing board agreed to meet again next week after it has done further research on the issue and may reconsider it’s decision.

The recount in the hotly contested senate race is scheduled to be complete by Dec. 5. But there are still more than 5,600 ballots the Franken and Coleman campaigns have challenged where they claim voter intent is unclear.

The canvassing board won’t meet until Dec. 16 to decide the fate of the challenged ballots and who will benefit from the votes.

Late Tuesday, Coleman’s recount attorney Fritz Knaak sent a letter to Franken’s campaign acknowledging that both camps “are engaged in a mounting game of ballot challenging that serves no useful purpose” and that both sides should work together to reduce the number of challenged ballots before the canvassing board takes up the matter.

“This is not the way the recount process was intended to work, and we are trying the patience and goodwill of election officials and volunteers throughout the state,” Knaak’s letter says. “While the Franken Campaign began this morning challenging 25 ballots in one Sherburne County precinct, the vast majority without merit, it’s obvious that our campaign volunteers felt the need to match these growing and unnecessary challenges throughout the day.

“This is an artificial game which has virtually no bearing on the outcome of this recount as we know that the vast majority of these challenges will be rejected before we even get to the Canvassing Board on December 16th. With that in mind, in the spirit of the holidays, and to give respect to this process that it deserves, we ask you to join us tomorrow morning in standing down in the game of ballot challenge one upsmanship.”

As for the absentee ballots that are still in dispute, Elias, Franken’s lead recount attorney, said one way or another they will be counted.

“Whether it is at the county level, before the Canvass Board, before the courts, or before the United States Senate, we don’t know yet,” Elias said today. “But we remain confident these votes will be counted.”

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