U.S. Senate recount: Will the courts ultimately decide the victor?

Al Franken (Photo: Aaron Landry) and Norm Coleman (Photo: WDCpix.com)

As the U.S. Senate contest lurches forward, with nearly 80 percent of the ballots recounted and Norm Coleman clinging to a roughly 200-vote lead over Al Franken, a resolution finally looks to be on the horizon. But as events have repeatedly proven over the last three weeks, nothing is as simple as it seems when a Senate seat that potentially could give Democrats a fillibuster-proof 60-seat majority is on the line.

All eyes will now turn to the five-member statewide canvassing board as it meets Wednesday morning to deal with the thorny question of whether to consider absentee ballots that were rejected by local election officials. The Franken campaign believes that the panel must do so in order to compile a complete and credible vote tally; the Coleman campaign argues such rejected ballots are outside the body’s jurisdiction.

But no matter the canvassing board’s decision, the issue is likely to ultimately end up in court. “I’m expecting somebody to be filing a motion in court by the end of day tomorrow,” says David Schultz, a political science and law professor at Hamline University. Schultz figures the losing side, whether the Democrats or Republicans, will immediately seek a temporary restraining order or injunction barring the decision from being implemented.

The only real question, he believes, is whether the jilted campaign will turn to federal or state courts for relief. The Franken campaign already has a case pending in Ramsey County District Court related to the rejected absentee ballots, but that doesn’t mean it’s the only possible venue for litigation. “Clearly the Franken campaign has done a really good job raising both federal and state claims, giving it options to go to either or both of the court systems at the same time,” Schultz says.

The rejected absentee ballots are not the only issue that seems ripe for litigation. The challenged ballots, which now number more than 3,000, could also prove irresistible to the teams of attorneys assembled by both sides. Schultz says that the key for whichever campaign looks likely to end up on the short end of the tally will be to keep the canvassing board from certifying the results. Until that happens a winner can’t be sworn in to office come January. “Whoever’s behind has every motivation, once it looks like it’s clear that they may loose this one, to prevent the canvassing board from acting,” he notes.

Perhaps the most intriguing wrinkle to consider when looking at possible litigation is the makeup of the canvassing board. Minnesota Supreme Court justices Eric Magnuson and G. Barry Anderson are both serving on the panel. This means that they would need to recuse themselves from any litigation related to the senate recount that comes before the state’s top court. Given that both were GOP appointees, this would seem to be an unwelcome development for the Coleman campaign. “It gets two potentially partisan Republicans off, although I don’t think they’re that partisan myself,” Schultz says.

If the contest drags on into January with no resolution, the opportunity to fill the seat would likely fall to Gov. Tim Pawlenty. That undoubtedly would result in Coleman being re-appointed to his post. But it would only be, at best, a temporary solution. If there’s no resolution, a new election would need to be held next November to determine who would fill the final five years of the term. “We’d have to run through the whole damn thing all over again,” says Schultz.

That’s a prospect that should be terrifying to Minnesotans of all political stripes.