Appendices for Seating Franken and Burris Memo to Congress: Try Obeying the Rules Appendix A: Minnesota's Recount Law Minnesota Recount Laws "Types of Recounts Permitted in Minnesota: An automatic recount of the results of an election for federal office, state constitutional or legislative office, or judicial office will occur if the difference in the number of votes cast for the apparent winning candidate and any other candidate is less than one half of 1 percent (0.5 percent). "Results of a Recount: The vote totals for each candidate following a recount may be different-in some cases, substantially-from the unofficial results reported on election night. This is often because the recount will turn up ballots that reveal a voter's intent, but were unable to be read by an optical-scan voting machine. For example, optical-scan voting machines do not register a vote if the voter circles a candidate's name instead of filling in the oval next to the name; provided the intent is clear upon manual inspection of the ballot, however, the vote is counted as a part of the recount. "The final results as modified, if necessary, by the recount are considered the final results of the election and are certified as final by the canvassing board." (Author's emphasis) Minnesota Election Contests 2008 Minnesota Statutes Chapter 209 Election Contests Appendix B: History of Congressional Election Contests Like the Queen of Hearts in Alice in Wonderland, the United States Senate can exercise extensive authority in challenging the legitimacy of state elections. The ability to use that power does not, however, confer on them an arbitrary right to challenge elections that are clearly legitimate. This would upset the balance of power between the federal and state governments and set the Senate up as a tyrannical interpreter of elections for its own purposes. The Senate outlines the types of challenges that are made to elected Senators. "Later in the 19th century and into the early 20th century, corrupt use of money became an issue, and the resulting public furor contributed to the eventual adoption of the Seventeenth Amendment in 1913, which provides for the direct election of senators. Since that time, campaign expenditures, demands for recounts in close elections, and complaints of election irregularities or outright fraud have constituted the dominant issues surrounding contested elections." The Franken - Coleman election recount has been highly transparent and orderly, perhaps more so than any recount to date. None of the modern criteria for a challenge in the Senate were met except for this being a "close" election. But we'll see that far closer elections of Senators from the minority party at that time were upheld. Closeness as a sole criterion is not sufficient to challenge the election. The following table shows the grounds and total cases (based on the primary complaint) between 1789 and 2002. There are no illegal acts claimed in the Franken - Coleman race. There are no "serious" election irregularities that have not been adjudicated by Minnesota law and procedures. Franken is qualified according to the XVII Amendment of the Constitution. Thus, there's no Senate precedent other than a very close election. In the case of Roland Burris of Illinois, there have been cases concerning the "illegal authority of the governor" to appoint Senators. Those were either prior to the XVII Amendment providing for popular election of U.S. Senators or since then, the unspecified or unclear language in state constitutions on the governors right to appoint a Senator. In the case of Illinois, there are clear procedures that were faithfully followed. There is no precedent at all for denying Burris' seat. Table 2: Grounds in Contested Election Cases Grounds & (Number of Cases) 1) Fraud, Corruption, and/or Bribery (28) 2) Serious Election Irregularities Not Involving Criminal Action/Intent (32) 3) Civil War and Reconstruction Issues (24) 4) Illegal Appointment by Governor (26) 5) Lack of Qualifications (15) 6) Other (7) Partisanship and Contested Election Cases in the Senate, 1789-2002, Jeffery A. Jenkins, Northwestern University. Studies in American Political Development, 19 (Spring 2005), 53-74, Cambridge University Press. Jenkins was cited in the body of the article on the precedent for seating legitimately elected Senators while state election contests take place: "Should a contest be brought against a senator-elect prior to his being sworn in, the chamber's custom has been to seat the individual contingent upon his credentials being in order." 1970 U.S. Senate elections The 1970 Indiana Senate race was decided by less than 5,000 votes. The election was certified and Democrat Vance Hartke was seated by the Senate. Losing candidate Roudebush filed for a recount. At that point Hartke filed suit in federal court to stop the recount. He lost the case, which stands as one of the most important statements on federal election law. The key point is that Hartke was seated during the recount and the court cases challenging the recount. Thus, precedent clearly favors seating Al Franken as the duly elected Senator from Minnesota. "That question is not moot, because the Senate has postponed making a final determination of who is entitled to the office of Senator, pending the outcome of this lawsuit. Once this case is resolved and the Senate is assured that it has received the final Indiana tally, the Senate will be free to make an unconditional and final judgment under Art. I, 5. Until that judgment is made, this controversy remains alive, and we are obliged to consider it. 9 [405 U.S. 15, 20]" The language is clear. The Senate seated the certified winner while retaining the right to reverse that decision should a recount show that Roudebush had actually won. This decision contains language that shows the broad power of the Senate to conduct election contests which are generally the result of a petition to the Senate by the losing candidate. "It is true that a State's verification of the accuracy of election results pursuant to its Art. I, § 4, powers is not totally separable from the Senate's power to judge elections and returns. But a recount can be said to "usurp" the Senate's function only if it frustrates the Senate's ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, [Footnote 23] and, if it chooses, to conduct its own recount. [Footnote 24]" Absent an explanation of the history, this broad power may be invoked by Coleman in a petition to the Senate. However, the step of taking over a state election process requires glaring problems outlined in the contest. Coleman's only basis for appeal to the Senate lies in his loss of a few challenges decided by election officials or state or federal courts. A recount that was conducted with transparency by clearly defined state law in accordance with the U.S. Constitution is a huge obstacle. Even if the Senate chose to be arbitrary and accept the election contest, there is a reasonableness test as to how they evaluate the state election procedures. Minnesota's recount would provide few opportunities for challenge and none that rise to the level of anything other than a close election. 1974 U.S. Senate elections The post Watergate elections provide an excellent opportunity to see if a "close election" is the sole criterion to challenge seating an elected member of the body. There were no challenges to the following three elections which were like Franken - Coleman, close elections. "Republicans took an open seat in Nevada, where Republican Paul Laxalt defeated future Senate Majority Leader Harry Reid by 624 votes (margin of victory) The election also produced other close results; Milton Young (R-ND) won reelection against Democrat William Guy by only 186 votes (margin of victory) and Henry Bellmon (R-OK) won reelection against Democrat Ed Edmondson by half a percent of the vote." The Bellmon - Edmondson contest of 1974 is particularly instructive. Bellmon won by a very narrow margin. Edmondson challenged in court then called for an election contest in the Senate. The vote was nearly unanimous to seat Republican Bellmon even though the Democrats had a 60 vote majority. In three close elections, the closeness itself was not sufficient to cause a Senate challenge. In the Bellmon election, the overwhelming majority of Senators rejected the election challenge for this very close race. The one instance in modern history of a Senate ordered recount was the 1974 New Hampshire election. Three different totals were arrived at by state recounts. The final recount showed a margin of only two votes. On that basis and other problems in the election, the Senate voided Weyman's 2 vote victory triggering a special election. That was decided in favor of Sen. John Durkin (D-NH) by 27,000 votes. It's hardly applicable to the 225 vote victory by Franken and the election procedures in New Hampshire were, at that time, not nearly as sophisticated as Minnesota's in 2008 - 2009. Clearly, a close election absent other significant grounds, is not sufficient for rejecting a duly elected U.S. Senator. This material may be reproduced in whole or in part with attribution of authorship and a link to this article. Press your browser's back arrow for article.
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