Minnesota Senate Race, Plagued With Defects, Could End in Supreme Court or Revote

Bush v. Gore looms, whether the Supreme Court wants it to or not.

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By Michael Barone, Thomas Jefferson Street blog

Will the Minnesota Senate race end up in the U.S. Supreme Court? Here's an article saying it might. Gov. Tim Pawlenty says Sen. Norm Coleman has "a plausible chance, a decent chance" to prevail. He says a second election is "highly unlikely" under Minnesota law. But couldn't that law be changed?

My understanding is that the legal case currently before a three-judge panel is hopelessly compromised. Previous rulings in different counties have been inconsistent, with ballots with one kind of alleged defect counted in some counties and ballots with the same kind of alleged defect not counted in others. Most of the inconsistent rulings have tended to favor Democratic-Farmer-Labor Party candidate Al Franken, which is why he has overcome the lead Coleman had when the votes were being tabulated in November. Some allegedly defective ballots have been counted and then commingled with others, so that the decision to count them cannot as a practical matter be reversed. This would seem to me to raise equal-treatment problems as described in Bush v. Gore , even if the Supreme Court tries to say that Bush v. Gore was a one-of-a-kind case and not really precedent.

If the Minnesota courts ultimately issue a certificate of election declaring Franken the winner, then I think Majority Leader Harry Reid will move to seat him; if they issue a certificate declaring Coleman the winner, then I think Reid will get the Senate to refuse to seat him. In that case, another election will be necessary, as occurred in New Hampshire in 1975. In that contest, the Democrat, John Durkin, won the special by a significant margin, and held the seat until he was defeated for re-election by Warren Rudman in 1980.

Who would win a special election in Minnesota? It's not clear. On the one hand, in the special elections held since last November—the Georgia Senate race and Louisiana House runoffs in December, the Virginia House of Delegates races in January, the Fairfax County (Virginia) Board of Supervisors special election in February—there has been a much bigger drop-off in Democratic turnout, as compared with Nov. 4, 2008, than in Republican turnout. That would suggest Coleman would win in Minnesota. But the November 2008 Senate race in Minnesota wasn't a two-man contest. Coleman and Franken each got 42 percent of the vote, while Dean Barkley—the independent party candidate who served in the Senate by appointment of Gov. Jesse Ventura to fill the unexpired term of Paul Wellstone, who died in a plane crash in October 2002—got 15 percent of the vote. The Barkley voters tended to vote for Barack Obama for president; in a two-way race (assuming Barkley doesn't run in the special), they might be supposed to be more likely to vote for the DFL Franken than the Republican Coleman.

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