Norm and Lindsay
The GOP's dimming prospects of defeating Al Franken
Norm and Lindsay
Dick Polman, Inquirer National Political Columnist
Strictly from a legal standpoint, the Republican party's desperate attempt to keep Al Franken out of the U.S. Senate, and thus deny the Democrats their 59th seat, appears to be virtually doomed. After being thrashed earlier this week in a Minnesota court ruling, Republican incumbent Norm Coleman's victory odds, via the judicial route, are now roughly akin to the odds of Lindsay Lohan entering a nunnery.
At some point, the Republicans may have to face the music and admit that it's a waste of time to keep wasting money. But Coleman and the GOP aren't there yet; they will first need to hit bottom. Actually, their persistence is understandable; it's not as if the Republicans have much else going for them these days. (Indeed, today they are focused on the faux grassroots "tea party" "movement," bankrolled in part by corporate lobbyists, which purports to protest high government taxes...at a time when 95 percent of Americans are getting tax cuts). So, given the paucity of credible GOP projects, why not just keep waging a scorched-earth legal battle despite the ever-lengthening odds?
At this point - Minnesota has now gone more than 100 days without two senators - it's not a matter of whether Franken will become the 59th Democratic senator; rather, it's apperars to be only a matter of when. To appreciate why this is so, let's play out the judicial process, starting with the strongly-worded smackdown of the GOP that was handed down late Monday.
Coleman lost a statewide hand recount that was supervised by a bipartisan canvassing board. He then lost a seven-week trial that was supervised by a bipartisan three-judge panel. He basically claimed during the trial that the tallying of absentee ballots was unfair and erroneous; that Minnesota election officials violated the U.S. Constitution's equal protection clause by using a variety of standards to accept and reject those absentee ballots. To buttress his case, he cited that famous 2000 case, Bush v. Gore. (You knew that one was coming.) But the three judges, in their Monday ruling, blew Coleman out of the water on all counts.
The judges wrote that Coleman had produced "no evidence of a systemic problem of (voter) disenfranchisement in the state's election system," that Coleman had failed to provide any "allegation or evidence of fraud or foul play." The judges had allowed the counting of several hundred more absentee ballots (after which Coleman was even further behind), but ruled that Coleman's attempt to introduce thousands of illegal absentee ballots would have violated state election law. And in conclusion, the three judges minced no words:
"The overwhelming weight of the evidence indicates that the Nov. 4, 2008 election was conducted fairly, impartially, and accurately." They ruled that Franken "received the highest number of votes legally cast" and "is therefore entitled to receive the (state) certificate of election."
Prominent election-law experts have already suggested that Coleman pack it in. Richard Hasen, a Loyola Law School professor and election-law blogger, characterizes the Minnesota ruling's "findings of fact and conclusions of law" as "reasonable and conservative...the kind of opinion that is unlikely to be disturbed on appeal by either the Minnesota Supreme Court or the U.S. Supreme Court."
But his assessment seems tame, when matched against the verdict of Guy-Uriel Charles, an election-law expert at the University of Minnesota Law School: "Unfortunately for Coleman, his (legal) prospects always depended upon a miracle...A good lawyer should know when further litigation is fruitless, and a good politician should abide by the same guiding principle."
Charles' argument was seconded yesterday by a Republican strategist who dished to a Capitol Hill newspaper: "(Coleman) is cooked. At this point, continuing to carry on only damages his brand for future bids for office.” And a new survey, conducted by Public Policy Polling, reports that 63 percent of Minnesotans (and 61 percent of swing-voting independents) want Coleman to give it up.
Coleman's prospects for a court victory appear fruitless in part because appeals courts rarely agree to hear election-law cases, much less overturn the lower court rulings. Appeals judges tend to overturn only when there are egregious constitutional issues (such as racism) or flagrant partisan biases. There were no such biases in the Franken-Coleman election dispute.
The three-judge panel, which ruled against Coleman unanimously, is comprised of one Democratic appointee, one Republican appointee, and one Independent appointee. The state canvassing board that supervised the statewide hand recount was comprised of two Republican appointees, one Democratic appointee, one Independent appointee, and one member who had been elected in a non-partisan election....in other words, in the fairness tradition of "Minnesota nice."
So, for starters, it's hard to imagine the Minnesota Supreme Court overturning the three-judge decision. Coleman is appealing anyway, but here's a further complication for him: Two of the Republican high court appointees will not be participating. They've recused themselves - because they were the two Republicans who helped supervise the statewide hand recount. Which Franken won.
So let's assume (wisely, in all probability) that the Minnesota Supremes, in the next month or so, deal Coleman yet another defeat. He's still threatening to take his case directly to the U.S. Supreme Court, hoping that the equal-protection argument from Bush v. Gore will help him prompt the federal Supremes to invalidate the state voting procedures.
But here's his problem: Ever since the highest court dragged George W. Bush across the finish line on Dec. 12, 2000, it has never once applied Bush v. Gore to any other case. That's because the Bush case dealt with very specific circumstances - varying standards that determine the validity of punch-card ballots - and, more importantly, that's because the judges themselves don't want to apply Bush v. Gore to any other case.
When ruling for Bush, they said so themselves: "Our consideration is limited to the present circumstances..."
You know how the Republicans always claim they want "strict constructionist" judges who will respect precedent and hew to the literal meaning of words? Well, the literal meaning of Bush v. Gore is that it can't be applied to any other cases:
Our. consideration. is. limited. to. the. present. circumstances.
Which is why the federal Supremes haven't applied Bush v. Gore to any other circumstances. It is Coleman who would be seeking a broad and liberal interpretation, in violation of alleged Republican principles, thus exposing the hypocrisy of his last-ditch mission. And even if he goes this route - or takes the even more extreme option of filing a whole new lawsuit in the lower federal courts - it's highly likely that the Minnesota Supreme Court will have already instructed the governor to sign Franken's victory certificate.
Bottom line: Coleman is a well-done sirloin awaiting the proverbial fork. If not for the financial/legal efforts of his party to delay the seemingly inevitable, he couldn't be more cooked.
Dick, lawyer you are not (probably a lawyer wannabe though). be careful Dick, there is a strong argument that the 3 judge panel applied the wrong standard of law to their review, which is prime issues for a legal appeals court. I know it is far above you to understand the law as you are merely a writer, but the saga is far from over as you like to think. Perhaps you should read the filings?— CD75- Get ready for all the liberal lawyer wannabes who never could get into law school to start spouting how much law they know......— CD75
- "It is [R] who would be seeking a broad and liberal interpretation, in violation of alleged Republican principles, thus exposing the hypocrisy of his last-ditch mission." This really shouldn't come as a surprise. It's what I would expect of any politician, R or D. It's just that abandoning principles for expediency has become a trademark of the R's of late as they don't appear to have anything constructive to offer, just naysaying and obstructionism.— Phrossty
Comment removed.- CD75, thanks for validating all of Dick's points.— Mcarlyle
- Comment removed.
- Hey CD: I AM a lawyer and I agree with Polman. Coleman is cooked, and if the GOP continues to go down this road in Minnesota, its effort to come back in the State will be set back for years to come.— AHiredGun
If the situation were reversed do you think the comedian would give it up?— jmc- Comment removed.
- jmc - Not for a second, but I think I alluded to that in my prior post.— Phrossty
- Comment removed.
- jmc: Yup, I think so.— bensalemite
- jmc - if the situation were reversed in 2000 do you think that George would've given up for the good of the country? cd - aside from the outside argument of failure to apply constructionist law standards (which you don't reference), unless you missed DP's inclusion of the fact that the Minnesota Supremes include folks who won't be present at any appeal due to confilcts, where would Coleman's support come from?— 77volks
- jmc - Yes. Unlike you and the other GOP humps on this board, Franken actually possesses a working brain. Get over it. Isn't that what you mental giants said post Gore v Bush?— Malachy
- CD75 is just like his Republican and Conservative compadres - pathetic and irrelevant. They have no platform, no credibility, and no leaders. They are the driving force behind the overwhelming majority of what is wrong and destructive in this country. They seek only to defend their own, demented interests, at the expense of the rest of the American community. Alas, they are on a greased rail toward permanent minority status, which is fitting, because Republicans and Conservatives have long preyed on other minority groups for their simple-minded, greedy and myopic ends. They are a joke that CD75 emulates with each of his (or her) ridiculous posts. Keep up the good work! Your constant stupidity makes my day!— the anti-CD75
Cited by the Columbia Journalism Review as one of the nation's top political reporters, and lauded by the ABC News political website as "one of the finest political journalists of his generation," Dick Polman is a national political columnist at the Philadelphia Inquirer. He is on the full-time faculty at the University of Pennsylvania, as "writer in residence." Dick has been a frequent guest on C-Span, MSNBC, CNN, NPR and the BBC. He covered the 1992, 1996, 2000, and 2004 presidential campaigns.
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