Strib's latest, on the razor's edge, anticipating a Senate vote recount and more importantly, follow-up developments.
Litigation in waiting: Recount could be just the start in deciding Minn. Senate winner
By BRIAN BAKST , AP - November 6, 2008 - 4:00 PM
Minnesota's race is one of three up in the air nationwide. Races in Georgia and Alaska are also unresolved. All three involve Republican incumbents in a year that has seen Democrats gain six seats already: Colorado, New Hampshire, New Mexico, North Carolina, Oregon and Virginia.
In percentage terms, Minnesota's race will go down as the closest Senate election prior to a recount. In 1974, a New Hampshire race came down to 355 votes out of 200,000 cast.
The loser in that race, the Democratic candidate, overtook the Election Day victor by 10 votes in a recount. But more maneuvering and court challenges overturned that result, and the state's Republican governor awarded the election certificate to his party's nominee.
The case ultimately wound up before the Senate, where Democrats held a large majority. But a standoff dragged on until August, when the Senate voted to declare the seat open. A special election was held the next month, and record-breaking turnout helped Democrat John Durkin prevail.
"It does go to some indication of how far the Senate was willing to go," said Associate Senate Historian Don Ritchie.
The Minnesota election law envisions Senate involvement.
Once a result is contested in district court — which must come within a week of the post-recount canvass — the chief justice of the state Supreme Court assigns three judges to hear it. The current chief, Eric Magnuson, is an appointee of Republican Gov. Tim Pawlenty.
Either party can request to inspect the ballots, and three-member inspection teams are appointed. Each party picks one, and the third is chosen by the two or appointed by a judge.
Within 20 days of the initial filing, a trial is held. The court decides who received the most votes and is entitled to the certificate of election. The court can study evidence of election irregularities, but it can't issue findings or conclusions.
Once all appeals are exhausted, either party can ask that the information be forwarded to the presiding Senate officer.
From there, it's up to the Senate to decide how to proceed.
"Ultimately the Constitution gives the Senate the sole power to determine the qualifications of its members," Ritchie said. "In the end, there is no appeal if the Senate makes the decision."
Neither campaign made legal advisers available for interviews Thursday.
Ohio State University law professor Edward Foley, who is writing a book on disputed elections, said it's up to the candidates to decide how far to push things.
"I'm not saying either side has to concede or give up," Foley said. "But what bipartisanship going forward with the recount would mean is that there is a shared understanding of the ground rules in conducting the recount and abiding by that process."
They could, apparently, agree to a Burr-Hamilton resolution; in the Metrodome I suggest, proceeds of ticket sales going to charity. That seems within the scope of "bipartisan" ways and means of resolution. That way, please note, NRA favors Norm. And it might put the Senate in a truly odd position, how they might handle that one.
________UPDATE________
MPR, here, adds:
In the 2004 governor's race in Washington state, the initial vote count put Republican Dino Rossi 261 votes ahead of Democrat Christine Gregoire.
A machine recount narrowed that margin further, finding a 42-vote Rossi win. After that, the state undertook a second, by-hand recount of ballots that gave the win to Gregoire by 129 votes. She was inaugurated soon after, but Republicans sued to overturn the results. The case dragged on until June, when a judge rejected Rossi's legal efforts.
Minnesota and Washington both use optical-scan ballots that voters mark by hand.
In the Minnesota recount, officials may in some cases have to attempt to divine the intention of voters who failed to properly mark their ballot.
"There are almost as many ways to mark a ballot as there are people marking them," said Doug Chapin, director of Electionline.org, an election reform project of the Pew Charitable Trusts.
Minnesota's most notable election recount came in 1962, when DFLer Karl Rolvaag edged Republican Elmer Andersen by 91 votes - the closest governor's race ever in Minnesota. That recount wasn't completed until the following March.
The photo finish in this year's Senate race came after nearly two years of intense, sometimes bitter competition between Coleman, one of the state's most durable politicians, and Franken, who made his name as a writer and performer on "Saturday Night Live."
The candidates spent $30 million attacking each other on the airwaves. Millions more poured into the race from national parties and outside groups, leaving both men with high negatives in voters' eyes.