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HOW TO RUN AN ELECTION
INTEGRITY MAKES AN APPEARANCE IN MINNESOTA
By BRAD FRIEDMAN
The state canvassing board in Minnesota has now certified Al Franken, a Democrat, as the winner over incumbent Republican senator Norm Coleman in the race for the US Senate. On Tuesday, as expected, Coleman filed a legal challenge to the results in state court, questioning the counting of some ballots and the rejection of others.
Franken’s team has described the suit as “the same thin gruel, warmed-over leftovers ... that [Coleman’s attorneys] have been serving the last few weeks,” during the protracted, transparent and painstaking hand count of ballots in the astonishing close race. But even they acknowledge the Republican’s right to contest the election now that the results have finally been certified by the state canvassing board.
Barring the success of Coleman’s challenge, which even some Republicans consider a long-shot, Franken will have won the seat by just 225 votes out of some 2.9 million cast. But there’s still a chance, albeit a slim one, for Coleman to reverse his fate.
A very good provision in Minnesota’s law that is not found in most other states will delay Franken’s seating. The provision, which should serve as a model for the rest of the country, requires the completion of all legal challenges before final certification is sent to Congress by Minnesota’s governor and secretary of state. Therefore, Franken was not sworn in with rest of Congress at the beginning of the new session on Tuesday. Ultimately, however, the provision ensures that whoever is eventually sworn in as the state’s senator will not be forced to serve under a cloud. No matter how long it takes, the voters of Minnesota deserve that much.
Followers of election integrity issues may well remember the brouhaha following the special election in the summer of 2006 to fill the US House seat vacated by Republican Randy “Duke” Cunningham after he was convicted on bribery charges. The election between the Republican challenger Brian Bilbray and Democrat Francine Busby in San Diego’s 50th congressional district – seen at the time as a bellwether for the impending fall elections – was an embarrassment. Both federal and state laws were violated in the race by the use of electronic voting systems that, due to San Diego’s election procedures, were effectively decertified for use.
With thousands of votes left uncounted by the electronic Diebold optical-scan voting systems (used in violation of the law after they were sent home on unsecured sleepovers with poll workers for days prior to the election), Susan Lapsley, then the assistant secretary of state under Republican secretary of state Bruce McPherson, faxed a hasty certification to the then Republican-controlled US House of Representatives declaring Bilbray the winner of the race.
Lapsley’s certification was sent despite legal challenges being mounted to contest the results of the election. Then, following a letter sent to the judge presiding over the election contest by the attorney for the Republican chair of the US House administration committee claiming the constitution gives sole authority to Congress, and Congress alone, whether or not to seat Bilbray, the case was dismissed on jurisdictional grounds. It was decided that neither the voters nor the courts of California would be allowed to determine who actually won the seat under state law.
It was outrageous, but in apparent accordance with both state law and the US constitution – at least according to the House Republicans, who rushed to swear Bilbray in as soon as possible, and the state courts who, as is often the case, look for any reason to stay out of election-related matters.
Essentially Bilbray won the seat because California’s Republican secretary of state illegally rushed certification to the Republican-controlled US House who claimed complete constitutional jurisdiction to seat the member of their choice (who just happened to be the Republican).
Thankfully, and with great respect to the voters of Minnesota, the state’s law requiring the completion of legal challenges before final certification is sent to Congress should help stave off such an outrage by avoiding the ability of a Democratic US Senate candidate to be certified by a Democratic secretary of state (Mark Ritchie), only to be seated by a Democratically-controlled US Senate claiming absolute constitutional authority over the seating of the candidate of their wishes.
The Republican candidate, and the voters of the state, deserve to see the completion of all possible challenges to the result of the election before they are robbed of their jurisdictional rights over who represents them in Congress. It’s a pity the same courtesy was not given to the voters of San Diego in the race, but at least – barring any surprises – that same outrage should not happen in Minnesota.
If that means a further delay before Minnesota’s new senator is sworn in, then so be it. At least once they get their senator, every voter in the state should know that every reasonable doubt concerning the election of that senator was resolved legally by the voters and courts of the state itself accurately and transparently.
Would that every voter in the US was afforded the same courtesy in every race for the US Congress.
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