Monday, January 5, 2009

... until it's over

The Minnesota State Canvassing Board is expected later today to call Al Franken the winner of the U.S. Senate race in that state. The Board has done as much recounting as it considers appropriate, and has found Franken to be ahead by 225 votes.

But, as is so often the case, the wisdom of that great American philosopher Yogi Berra fits this situation: "it ain't over until it's over".

Franken's opponent, Republican Norm Coleman, who has held the seat for the past six years (and is now, I suppose, correctly described as a "former senator") has two possible avenues to challenge the decision: 1) the courts; and 2) the U.S. Senate.

Coleman has already challenged certain recount procedures in Minnesota courts. If the Board acts as they are expected to do today, that will mark the beginning of a seven-day period during which the result can be challenged. It seems certain that Coleman will make such a challenge.

The Senate could also take up the case, pursuant to its constitutional authority, granted by Article 1, clause 5 of the Constitution, which provides in part that "each House [of Congress] shall be the Judge of the Elections, Returns and Qualifications of its own Members".

It seems unlikely that the Senate, with its large Democratic majority, will come to Coleman's rescue. On the other hand, I suspect that Senate Democrats are wary of creating the impression that they are implementing a power play to finalize a Democratic victory. That could create a backlash in favor of Republicans in Minnesota, and perhaps more widely.

However, there is a precedent in the House of Representatives that suggests that a majority party incurs no lasting damage from such a decision. The dispute to which I refer involved a 1984 House race in Indiana. For more details, see this decision of the U.S. Court of Appeals for the D.C. Circuit, when that court declined to intervene in the controversy. (One interesting sidelight: the court's opinion was written by Antonin Scalia, just before he moved to the Supreme Court.)

I happened to be visiting Washington when the House voted along party lines to seat the Democratic candidate Frank McCloskey, and I listened to much of that debate from the House Gallery. Despite much harsh rhetoric from Republicans, who tried in vain to force a special election, the action by the Democratic majority seemed to have no lasting effect. McCloskey continued to be reelected, until he was caught up in the Republican landslide of 1994.

As another demonstration of one of my favorite political maxims, "a week is a long time in politics", it's possible that any action that the Democratic Senate majority might take in favor of Al Franken might be largely forgotten by the time of the next election.

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