The Coleman campaign is back to court, this time filing a petition with the Minnesota Supreme Court that seeks to prevent Minnesota's Canvassing Board from certifying the results of its recount until an issue with what it claims to be duplicate ballots is resolved. In addition, Coleman requests that the court mandate that the individual precincts double-check for potential duplicate ballots in conjunction with their court-ordered review of rejected absentee ballots, which is set to proceed between now and December 31.
Duplicate ballots are created under the ordinary circumstances of an election when an original ballot cannot be read properly by machine scanners. This may be because the ballot is damaged in some fashion. Alternatively, some overseas ballots are sent by e-mail to the participants, printed out on regular paper, and then mailed to the state. A duplicate version of these ballots must be created because the machine scanners cannot read ballots on regular paper, requiring the thicker stock that ballots are printed on.
In creating duplicate ballots, the precincts are supposed to carefully match the duplicate ballots with the originals to ensure that such ballots are not counted twice (or, alternatively, not counted at all). In some cases, however, the duplicates and the originals have become decoupled from one another, and the Coleman campaign claims these ballots have been counted twice.
There is no particular reason to believe that this type of ballot particularly ought to favor either Coleman or Franken, as such ballots arise because of errors made by elections officials, rather than by voters. In addition, one significant source of duplicate ballots is overseas military personnel, who will often print out their ballot by e-mail and sent it to Minnesota on regular paper; military personnel generally vote Republican.
However, the Coleman campaign has been much more aggressive in identifying and challenging potential duplicate ballots, submitting approximately 200 such ballots to the Canvassing Board. The Canvassing Board ruled this morning that it does not have the jurisdiction to deal with the propriety of the duplicate ballots, instead telling Coleman he needed to go to court.
In a discussion before the Canvassing Board yesterday evening, Franken attorney Marc Elias claimed, among other things, that his campaign had specifically been prevented from challenging potential duplicate ballots in certain counties. Elias also produced an e-mail from Coleman lead attorney Tony Trimble, which admonished the Franken campaign for attempting to have such ballots challanged.
Coleman's petition is unfocused and haphazard, oftentimes citing precedents from other states and arguing that they should apply to Minnesota. It may be motivated in part by the Coleman's campaign wanting to avoid a circumstance in which the Canvassing Board certifies a recount total showing Franken ahead, would be damaging to Coleman from a public relations standpoint.
There are, however, undoubtedly some legitimate instances of double-counted ballots, and it would not surprise me if the Court seeks a mechanism to address them. But, it is not clear that such a review would benefit Coleman if a truly comprehensive review is made. That Coleman has been more aggressive in challenging such ballots does not mean that the circumstances in which they arise are intrinsically more likely to help Coleman.
12.19.2008
Coleman Sues on Duplicate Ballot Claim, Seeking to Prevent Certification of Recount
@ 1:26 PM
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Interesting.
Franken wins by 22
@ Nate -- TYPO: "There are, however, undoubtedly are some legitimate. . . " (one too many "are's" here)
I agree with your implication that Coleman is being more aggressive in lawyering because he's losing.
Increasingly it's looking as if his best hope is somehow to work the counting rules or change the venue.
Franken's strategy has been "clean" in this sense: count all the ballots. Coleman's has been consistent in this sense: don't count all of the ballots. Granted, there should be no double counted votes, but it's interesting that both candidates' lawyers at first agreed to make the "original ballot" the gold standard but that two days ago the Coleman campaign decided to renege on that agreement.
The fact that Coleman is complaining about something that is a 50-50 proposition to help him, tells me that Coleman's camp think they'll lose the recount and they want to avoid certification for precisely the reason you suggested. Hope I'm reading the tea leaves correctly.
Coleman is pushing the number of objections for two reasons:
1. He's losing so anything that shakes up the recount can only help him.
2. He's positioning himself for an appeal. He needs as many arguments as he can muster that the State isn't handling things right and ought to be overturned by the Federal courts.
Whether this strategy has any success we'll have to wait to find out.
Seems to me like Mr. Coleman sees where this is heading.
Legally speaking, Coleman seems to be grasping at straws (or maybe a better metaphor would be that he's drowning--and he knows it--and he's flailing about hoping to get hold of a buoyant object to keep his hopes of a victory afloat).
It will be interesting to see how the MNSC responds to his petition, and to see what other challenges his legal team cooks up. I doubt this latest will be his last.
Sounds like a man who know`s he is losing. If I was Coleman I would take the loss like a man because he has other legal problems he will have to deal with and it`s probably best for the GOP not to have another sitting senator get indicted for corruption.
Anyway having Franken win will be worth it just to see O`reilly and Hannity`s head explode!
Stephen from Mpls says
Nate, good post. You stay fairly close to the facts. You provide context for your judgments here. The recount is now all about process -- and despite the "problems", the process looks like it will ensure that all votes (legitimately cast votes) will be counted and counted according to "voter intent". Neither Al or Norm is likely to be in a position to "influence the outcome". Certainly not within the Minnesota court systems --- come out of political culture much different that Ohio, Florida or Illinois.
Nate, is it an overgeneralization to keep saying "military ballots are generally Republican."
Do we have breakouts from this year's races to back that up? Certainly we know that campaign donations from military personnel favored Obama on the presidential level this time around - did that translate to the ballot box?
@Nate: another minor typo: "print out their ballot by e-mail and sent it to" should be "send it to".
Scott raises a good point...
...given that military personnel are disproportionately young and non-white, it would be a surprise that they tend to vote Republican (even though they are disproportionately male). The conventional wisdom I had always heard was that officers tend to be Republican and enlisted ranks tend to be Democratic. Since the ranks outnumber the officers, the military as a whole may lean Democratic.
Surely the e-mailed ballots aren't actually producing any duplicates, since the original would be on plain paper and easily distinguished from normal ballots.
Everyone by now knows that the fix is in for Frankinpuss. There is no way that Coleman can win this tainted process. It started by the counting of the 133 phantom ballots. Next was the illegal (by Minn state law of any votes not included in the original count). If the law needs changing, so be it, but it is not for the Supremes to change the law midway through a recount. Libs always want to think life is fair. It is not and can never be. Take the hand you are dealt and try to improve yourself.
@R Linder:
Actually, your better metaphor is the same metaphor. That's exactly what "grasping at straws" is -- a drowning person grabbing at anything that floats, no matter how unlikely it is to support his weight.
wv: sessif -- Norm Coleman sessif you count all the votes I'll sue.
Well, we've got him on the defense which is a good sign, but we should not let our guard down till it's finished. He's going to throw the kitchen sink at us, just like how we were hoping Franken would throw everything he could at Coleman when Franken was down. It's going to get ugly, and it won't end until every possible option has been exhausted by both sides.
Jack be nimble, Jack be quick
Jack be a whiny Republican prick
@ David Tate
Thanks for the clarification. I checked out its origin after your post and found (as I suspected) that it was originally grasping at straw, singular, which makes even more sense to me.
I'll be more etymologically aware in future posts.
This is a clear indication that Coleman has lost. In another thread I pointed out that both sides know what the early-withdrawn ballots will amount to (the original ruling will stand, no further individual examination needed, thanks all the same Star Trib online-ballot judges).
Nate hit this on the head, this is an attempt to prevent certification. So, let's read the tea leaves a bit...
Yesterday's decision was crazy, and a victory for Coleman (he didn't want absentees counted and the Court made it very cumbersome to do so), but it was also a clear attempt to prevent Federal appeal as it requires parties to agree on method. Also, we know that with all that dicta in yesterday's order about rules of civil procedure, they don't want anymore to do with this. Which leaves us two questions. Will they decide this latest petition and, if so, what will they say?
Due to the two Sup Crt Justices sitting on the CB saying they don't have the authority, the Sups ARE going to, begrudgingly, hear this case.
My guess is that they'll rule Coleman had his opportunity to challenge and only those before the board are up for debate. The Court will then direct the CB to accept or reject the duplicates (hardly matters as they are few in number). Thoughts?
Here's a theory: If Coleman has a strategy at this point, it's a Hail Mary strategy of trying to get this to SCOTUS in hope of another Bush v. Gore (read: political instead of jurisprudential) decision. It's a real long shot that they'd grant cert, but stranger things have happened (remember?).
A secondary motivation may be to ensure that if Frankin wins, he ends up utterly last in seniority, limiting his effectiveness (particularly in subsequent terms) and thus making him more vulnerable in future elections. If he doesn't get sworn in on the same day as the rest of the freshman class, he'll be the lowest or second-lowest on the totem pole, and he'll likely also end up with the crappiest committee appointments for his first term.
Is it just me, or does it seem that the Republicans are getting out-lawyered throughout this process? But then, what do I know? I thought the same thing before the Bush v. Gore decision.
Christopher,
Eh, just ignore him.
I remember one time when I had to evacuate for a hurricane, we were staying at this hotel with a bunch of other folks and I had a deck of cards with me. Evacuations are usually very boring, and it's never hard to find people looking for some kind of distraction.
Turns out that I managed to get three other folks to play a game of Egyptian Ratfuck together, none of whom knew how to play. One was this middle-aged soccer mom type, a real control freak too. Irritating as all fuck to be around. Anyway, it took a couple minutes to explain the rules to everyone, but everyone caught on besides her. She wasn't very good at it because her reflexes kinda sucked and she wasn't paying any attention to the cards. She was losing badly as a result, the other two were doing okay, and I was winning, which makes sense since I was the only one that had any experience with the game. She couldn't see it that way, though; the only reason why she could be losing is if everyone else was cheating. She kept going on and on everything someone else played a card that this whole thing was a setup from the start, that we all knew each other and didn't admit it just so we could take advantage of her, and we were all cheating.
Now, some card games it is profitable to cheat on, because there's money involved, like poker or blackjack. Egyptian Ratfuck is not the kinda game you can bet money on, any more than you could on a game of Rummy or Spades. But she was so competitive, and so convinced in her mind that she not only had to win any competition she ever entered in her entire life, she thought that the only way she could ever lose is if someone else cheated. Like it was against the laws of physics or something.
That's a common theme among conservative, anal-retentive suburbanites. Global Warming, which implies that something bad happens because they drive SUVs, can't be real, because that would mean they did something bad,a nd they can never do anything bad. Why, they even shit orange-scented solid-gold turds out in the suburbs. There can't be any acknowledgment of the possibility of error on their part. That's where the whole, "never apologise, never explain' thing comes from. As long as you deny your error, then no error can possibly exist.
So don't feed this GOP troll. Jack's never going to admit that his candidate could be losing because of some mistake on his part, or because the people of Minnesota (barely) preferred the other guy. If Coleman loses, it must be because Franken cheated, or the media's in the tank for the Dems, or some shit like that.
Now, reality does have a liberal bias, I will admit that. But I,m not sure the Republicans care much about reality, when they live in this fantasy world where responsibility does not exist unless you say it does.
Hmmm, I read over too quickly and didn't appreciate there 200 of these duplicates before the CB.
One would guess these are either Franken votes right? So Coleman can't pick-up votes from these, unless they were uniform about challenging duplicates with Coleman votes, which seems unlikely. ...But, again, can't we figure this out with all the ballots having already been scanned?
The bottom line here is that, as I wrote last night, the State Canvassing Board is free to, and will, certify a result after 4:00 PM on 12/31 and the certified winner will be sworn in on 1/6. Coleman, who to all appearances won't be the winner in that cerification, is asking the court to prevent certification until a date uncertain. My best guess is that the court will say no.
There are two possible explanations for duplicates and originals not matching.
The first is the failure of the election authority to properly mark duplicates and originals and properly segregate them. When this happens, a ballot that should be identified as part of a pair is not and you would double count if you counted the other ballot from the pair.
The second is the failure of the election authority to properly store and maintain all ballots (which we know has happened in this election). Under that circumstance, the other ballot in a pair is missing (and was not counted). If you don't count the half of the pair that you have, then you are failing to count a valid vote.
I don't know what the Minnesota Supreme Court will do with this challenge. It would seem to be similar to the absentee ballot issue in that the allegation is an error by the election authority. As noted in the order, that type of error can only be corrected with the consent of both parties. We seem to be importing actions that should be part of the post-certification election contest into the recount process.
Why, they even shit orange-scented solid-gold turds out in the suburbs.
Damn. I should've gone into the septic tank cleaning biz.
Here are two summaries (the first one is better) of the details concerning the duplicate ballots. This really is a conundrum.
http://www.minnpost.com/ericblack/2008/12/17/5346/recounts_next_big_issue_duplicate_ballots
http://www.politicsinminnesota.com/2008/dec18/1471/demystify-double-votes-ponder-perch
Here is the problem:
"When the original ballot cannot be entered into the counting machine, Minnesota] law requires [an election] judge to create a duplicate. The judge is supposed to write "Original-1" on the first such case in the precinct, copy the [voter]'s votes onto a blank paper ballot (of the proper thickness), label that one "Duplicate-1," feed it into the machine, and save the original in a special folder for all the originals that come into that precinct (so, in case of a recount, the duplicate can be checked against the original). Pretty slick, eh?
If, when you go to recount, the duplicates and originals all match up, everything is hunky dory. But what if, when you go to recount, there is a gap between the number of originals in the folder and the number of marked duplicates in the pile of counted ballots?
***
You could create several theories about how the mismatch came about.
An election worker failed to label the duplicate, or failed to make it at all, or threw away the original after making the duplicate, or something else.
Heading into this year's recount, Secretary of State Mark Ritchie issued instructions to the counties on how to handle questions that might arise. In the matter of the duplicates, his instruction was to count the originals and set aside the duplicates. This was a new policy that Smith and Mansky said had not been followed in previous recounts.
In some precincts, this created a situation where there were more votes than voters, which probably increases the likelihood that those were cases where the duplicates were made and counted, but not labeled (and since they weren't labeled, they couldn't be set aside, according to the secretary of state's instructions). That's why the Coleman campaign is now complaining that Ritchie's policy created the double counting of more than 100 ballots."
So, how do you fix this on a recount? Answer: I do not think you can, at least not easily. You have some duplicate in the pile of ballots and it is unmarked. You may (or may not) know that you have an original that is marked. You can now look for a needle in a haystack, I presume, but the recounters had better have kept very good track about whether the original was counted in the original recount if you are now going to remove the unmarked duplicate (assuming you can identify it).
Note, further:
"
Clutching at straw maybe, but Colman has a stratergy that in theory could win.
If he can creat enough confusion that nobody is sure who won then he might get the Senate to order a new election.
Better yesterdays court decision has set a deadline. All Colman now needs to do is ensure enough votes remain in question. The deadline passes, the result is certified, he blames Franken and apeals to the Senate.
wv Legeripe. A cautionary word. Never cook the books if they are still green.
Note further:
"The Franken campaign's reply has been that the policy was created and examined by both campaigns before the recount began. The time to raise questions about it was then, and that time has passed."
KennyB-
Franken's response is what the MSC will go with. But, such a ruling pretty much requires that the 200 challenges are handled uniformly.
My question is whether the 200 challenges have any Coleman votes whatsoever--are the copy challenges strictly Coleman challenges. If they are strictly Coleman challenges, that's 200 votes which could be taken away from Franken.
Franken now up by 250!
How many of the "pulled" challenges are there from each side and when will they get added back?
fred,
There are about 5400 pulled challenges. They will be put back when the canvassing board is finished with challenges. So the final phase of the recount will probably be done before Christmas (or new years at the latest), leaving only court challenges.
Franken already would be at the bottom of seniority. For Dems at least, members sworn in at the same time are ranked in order of previous elected jobs held (some sort of combination of importance of jobs and length of service), then if equal, by size of state.
If I recall correctly, all the new Dem Sens - from NH, VA, NC, CO, NM, OR, AK - are of have been elected officials. Biden's replacement does not, but not sure if he has already been sworn in. That leaves only NY (if Caroline Kennedy, larger state) and IL left.
So any delay will make little or no difference on his seniority.
Okay, Franken's camp is claiming they have 338 "duplicate-challenges" if in fact Coleman wins and they end up being legitimate challenges. So, it looks as if Franken's camp has a back-up plan even if Coleman prevails with these duplicates.
Coleman has an arguable point, however, one cannot assume that in the case where there are missing duplicates,this is ONLY because such duplicates got intermixed into the general ballot pile, and therefore are double votes.
He's also changed his tune on how to handle this issue, earlier agreed upon by both teams and the SoS.
It IS important how this gets resolved, as we see the margin of victory by either party may be as little as a couple of dozen votes.
Interesting that in this state, WA, where we just had a similar hand count in a closely contested election, the decision was NOT to count the originals, but the duplicated ballots, however, the match was almost perfect as to the count of originals and duplicates.
The Republicans sued in County Court to have the originals examined and verified with the dupes, but they lost that battle.
Our count was probably more accurate between the originals and duplicates because the officials have plenty of time to do this process, it doesn't have to be done on election night, as our counting process goes on for 2-3 weeks after election day, though generally, except in super close elections, the winners are know on election night or the day after.
It's all mail-in voting, and the deadline to submit your vote is election day (drop off, central site, or postmarked), so in a super close election, it's going to take a few days before all the ballots even arrive, tho I recall some 80% do arrive on or before election day.
Out of some 50k ballots cast, the separation was, I think, 72 votes. After the hand recount, the lead was 62 votes. Incumbent Republican conceded.
Also, if you spoil your mail-in ballot envelope, you are notified by mail, and by phone, if you gave them that info (you don't have to), that there's an error in your envelope, and you can send back the affidavit which will cure it. You have 15 days or so after election day to do so, before the final canvassing is certified.
Now, do we know what precincts these ballots Coleman is challenging as double counted are coming from? One would think he'd be (cherry) picking precincts where Franken won handily.
I was researching the MNSC and being a MN resident, it never dawned on me to inquire about them (I read tirelessly the bios on the SCOTUS) so it struck me as odd but it seems that most oft the court was appointed by the current Republican Governer, Tim Pawlenty, and this is odd only because MN elects it's Supreme Court to six year terms. (of note is NFL Hall of Famer from the states Football team that serves on the court as one of the few elected court members).
I think that this might have something to do with the decisions that were handed down, since it is in my opinion a completely flawed decision, but one designed to give themselves cover at the expense of the people of MN. Just say that you want the SoS to come up with a set of rules to count, and barring that create a team of people of Bipartisian officials (a respected UoM Proffesor, a republican maybe the leutinant governer, the SoS and, a retired Democrat) to meet over the weekend and come up with a set of rules that they could present the court, at which point they could let the parties back in to argue the proposed plan, and then The court members could make a decision to ratify said rules. Now this sounds more complicated, but thats only because no one understands how much these two are going fight over ~.0003% of the overall vote
Coleman camp telling supporters that this will be an easy ass-kicking win for Norm:
Friend,
Our lead recount counsel, Fritz Knaak, just did a live interview on Fox News.....The recount is still making steady progress in moving towards completion, and this has been a busy week for us here on the Coleman Recount Team. Fritz does a great job of cutting through a lot of the speculation and rumor-milling we are seeing in some of the news these days and giving an accurate assessment of where things really stand.
You may have noticed that according to news reports today, Franken has taken the lead. This is only a temporary blip due to the timing of the recount process at the state canvassing board. Because of the timing of when we put in our challenges, the board is treating the Coleman withdrawn challenges on a different timetable from most of Franken's withdrawn challenges. Rather than taking the withdrawn challenges and allocating them behind closed doors and attributing them to the way the ballot was called by the election judge, the board is allocating our withdrawn challenges in this public setting. The withdrawn Franken challenges - which will result in a surge of our numbers - will be done in the next week behind closed doors. So, for example during yesterday's proceedings alone, the board allocated 244 of our withdrawn challenges this resulted in 223 votes going to Franken and 23 to other or 3rd party.
It's important to note that this is really nothing more than watching results come in on election night where you see shifts for one candidate or the other based on which areas have reported their results and which haven't. So while the media will write what they will write to draw attention to their stories, just like on election night, what matters most is who is ahead when this is all said and done. And we remain confident that at the end of this process, we will be sending a re-elected Senator Norm Coleman off to the U.S. Senate to continue working hard and getting things done for Minnesota.
Thanks,
Team Coleman
It looks like they have finished applying the 'legit' challenges. Assuming the numbers are correct on the STrib site, with Franken up 249 it's pretty simple (excluding the blue folder, the absentee ballot issues and duplicate ballot issues). Franken has 277 more withdrawn challenges remaining than Coleman. If he has 29+ more challenges to undervotes than Coleman in his remaining pile he'll be ahead at this stage in the process... In a sense it doesn't matter because there are so many other issues to resolve before the election can be certified but would be a public relations coup for Coleman and I'm sure he would be only too happy to declare that he has won the election for the 6th time.
CIVICS QUESTION:
Let's say this drags out in court for a couple months.
In that case, there are 99 senators for any legislation that comes up in the meantime. So do you still need 60 to beat a filibuster, or only 59?
HM
There are lies, dambed lies, statistics, and Politician's press statments.
wv. Nonflans. Male solidarity group. They are a beakaway from the more sucessful Nonquiches.
Cloture is determined by exactly 60% or more of the Senators voting on the question, not the number 60 unless 100 Senators vote.
You need 60% to beat a fillibuster, so you'd need 60 of 99 Senators, or 59 of 98, if something else happened to someone.
Cloture is determined by exactly 60% or more of the Senators voting on the question
Thanks - okay - so 99 x .6 = 59.4
Do we round down or up?
Of course, the dems are now short senators from NY, IL and DE
With 99 voting, it would take 60.
Remember though IL is also missing a Senator, and may be for some time.
This won't come into play until next month, by which point DE will have a new Senator, assuming he hasn't already been sworn in.
yikes - plus Colorado!
It may be difficult to pass the planned surge of early legislation
What happened to Sean, did you send him a Brett on thier honeymoon, J/K but seriously where are our On the Roadies?
IL and possibly MN are the only two potential unfilled vacancies. The others will be instantaneous (apparently Biden as of now intends to stay in the Senate until 1/20).
Ken Salazar likely stays until he is confirmed, same with Clinton - why resign a Senate seat if for some reason one is not confirmed (extremely unlikely, but still...). But their replacements will be set to go immediately.
If a MA vacancy occurs, though, there will be a several month absence of a Dem vote since that state, alone among the 50, does not allow the Governor to appoint the replacement.
sfergus: Thanks for all the great info!
(Duh, silly me - Alaska of course is the other state where the Gov doesn't appoint the successor).
@Fred
"How many of the "pulled" challenges are there from each side and when will they get added back?"
Numbers on the original challenges are available on the MN SoS web page:
http://electionresults.sos.state.mn.us/20081104/SenateRecount.asp
Total original Challenges 6,655
Franken Challenges-3,278
Coleman Challenges- 3,377
The Board had reviewed something like 1,317 of these I think about 420(32%) were from Franken's challengesand 900 (68%)from Coleman's challenges.
If so
Remaining ballots that Coleman challenged
about2477
Remaining ballots that Franken Challenged
about 2858
wv fubooki- what people used to say to Blogo everyday when he was a bookie
Interesting article from Science Daily for all of you tree huggers.
Little Ice Age partly caused by massive reforestation.
http://www.sciencedaily.com/releases/2008/12/081218094551.htm
While interesting, I find the more believable explanation of global warming and cooling to be associated with solar(sun) intensity. This year, for example, we have very week solar activity and lower radiation, thus cooler temps this year.
Sfergus, you need 3/5 of the senators "duly chosen and sworn" to vote in favor of cloture. It doesn't matter how many senators are voting. So senators who are absent (as opposed to seats that are vacant) for a cloture vote are effectively the same as "no" votes.
Obsessed, there's no rounding. If you need 59.4 senators, then 59 isn't enough, but 60 is.
Lest there be any confusion -
Cloture is 60% of the total number of senators, not just the senators voting on a bill.
If there are 99 senators total, then you need to have at least 59.4 for cloture. 59 is less than 59.4, so it's not enough.
KC, we're both wrong.
http://www.senate.gov/CRSReports/crs-publish.cfm?pid=%26%2A2%3C4QLS%3E%0A
It does take 60 Senators, irrespective of the number voting on the issue OR 3/5 of the duly sworn in Senators.
In other words, it would still take 60 if there are 99 Senators, by 59 if the are 58.
What am I missing here.
A ballot is not supposed to have any identifying marks, so how could they tell if it is a duplicate, unless it is a copy?
Sfergus, your link doesn't work, but I don't see how that differs from what I said. Are you saying that if somehow there were 101 senators, or 500 senators, that 60 would be enough to invoke cloture?
sfergus said...
"If a MA vacancy occurs, though, there will be a several month absence of a Dem vote since that state, alone among the 50, does not allow the Governor to appoint the replacement."
Massachusetts State Legislature wears the pants in that state. If the Democrates in the Legislature think the Governor is pliable, then they pass a law to allow the governor to name the replacement. The current law was written when John Kerry was running for President, so that Mitt Romney would not name a Republican to the Senate for even a one-day tour of duty. Instead, it was to be by special election. You can rest well knowing that any senator named as a replacement in Massachusetts will be EXACTLY who the democractic party wants it to be, or, failing that, who the VOTES want it to be.
KC - sorry, I misread yours, you had it right.
Joe the Fake - the Dem legislature might change the rules, but they'd do so (a second time opportunistically) at some risk, and likely with the opposition of all the many potential other Dem candidates who would likely want to run in a special election.
Not an expert on local MA politics (except that there is a noisy right-wing noise machine with the Boston Herald and the usual local radio rabble rousers), but I suspect changing the rules again might be a problem.
Cloture votes used to have to be two-thirds supermajority of Senators 'present and voting'. Was changed in 1975 to three-fifths 'duly chosen and sworn'. So it used to be 2/3rds of those voting (67 if 100 Senators are present, but could be lower with absentees), now it is three-fifths: 60 if there are 100 duly chosen (elected or appointed) and sworn. The latter means that if, after January 6, neither Franken or Coleman takes the oath of office, there will be only 98 US Senators duly chosen and sworn, and will require 'only' 59 votes for cloture. Don't see that as game-changing, however, as the Illinois seat has been counted as a Democratic and Franken would then make 59 Senators caucusing with the Democrats (57 actual Democrats, plus Bernie Sanders and you-know-who).
As for how states fill their Senate vacancies, only 33 or 34 states explicitly allow the governor to fill the vacancy (and then only until the next state-wide election). Some require the governor to pick from a list of prospective appointees from the same party as the vacated Senator; others require a special election.
So, Massachusetts is by no means alone in not allowing the Governor to appoint a replacement. Only thing special about MA is that the law was changed to pre-empt Mitt Romney from appointing a successor to John Kerry should he have become President.
From the Strib's Big Question Blog, about the MNSC decision from yesterday:
All the Whos down in Whoville liked Christmas a lot,
But the Court in St. Paul very clearly did not.
“We’ve got to stop Christmas from coming somehow,”
Said the Court as it ruled that the Whos must be fooled.
Then the justices had an awful idea,
A scary and maybe unlawful idea.
“Let’s make them keep working and fighting all season,
“Let’s just keep them squabbling ‘till they lose touch with reason!’’
And the thought gave the Court a warm lawyerly feeling,
While reporters in Whoville just about hit the ceiling…
Vinny -
What other states don't allow the Gov to appt other than IL and Alaska?
And what states other than WY, HA & AZ requires the Senator to be of the same party? And is WY the only one that requires that name to come from a list supplied by the same party if the Gov is a different party?
Someone on the Uptake blog wrote that Franken's campaign estimated they would be up 50-100 votes when the previously-challenged-and-then-challenge-withdrawn ballots are added in.
@ sfergus
I lived there for a long time. They change the rules about Senate replacements whenever they THINK they may need to. They were thinking about changing it back when Senator Kerry was considered to be a leading candidate for Secretary of State. Since MA likes to vote for Republican governors, it is a dance that goes on frequently.
The possible change was mentioned in Boston.com (the web page of the Boston Globe) when President-Elect Obama was making his choices for his cabinet.
It was also discussed when Senator Kennedy had his medical setbacks. It is widely assumed that Joe Kennedy Jr. would get his uncle's seat if he became permanently incapacitated.
Not sure why all this bruhaha over Massachusetts: Governor is now a Democrat anyway, MA hasn't voted in a Republican Senator in 30 years, largest state with all-blue Congressional delegation, etc. So however it would be decided, can't see there being much interparty squabbling if, God forbid, there should be a vacancy. (Intraparty squabbling, maybe).
Massachusetts does not change its law regularly. John Kennedy in 1961was replaced by appointment. That law, which might have been there for decades, did not change until the potential Kerry vacancy with Romney as governor. Repubs had been governor when this had happened since Dukakis retired, and the change was not made until it looked likely that the occurence would arise.
If you have proof to the contrary, please provide it.
I have trouble making direct links.
Here is a Huff Post article about Joe Kennedy Jr from April.
http://www.huffingtonpost.com/2008/05/22/kennedys-replacement-ap-a_n_103024.html
Hope this helps.
Here's a link on state where the Governor does not have automatic power to appoint anyone Senator irrespective of party:
http://blogs.chicagotribune.com/news_columnists_ezorn/2008/12/how-other-states-fill-senate-vacancies.html
One concern about MA - it is unclear to me whether there is a primary and then a general election, one election with candidates chosen by party convention, or a runoff if no one gets a majority.
It is possible if the first, 6 Dems could run, 1 Repub, and then the Repub wins with 30% of the vote.
Joe the Fake - all that article says is that the existing law was changed in 2004, which we know. It says nothing about it changing regularly.
My point again is that if changing a long-time accepted tradition once opportunistically in 2004, then changing it again opportunistically in 2009, would not likely pass the smell test, even in Dem MA. And particularly not after the IL Blago situation.
here is a link to the 2004 change
http://www.boston.com/news/local/massachusetts/articles/2004/02/19/democrats_eye_plan_to_protect_kerry_senate_seat/
and here is a link to 2008 DISCUSSIONS about a change, with Governor Deval saying the Blago scandal in IL should not affect the reasons for MA changing it laws back.
http://www.boston.com/news/local/massachusetts/articles/2008/12/09/patrick_ill_arrest_shouldnt_affect_senate_talk/
By the way, this stuff was not NEEDED in 1960, as a special appointee was named, Benjamin Smith, "a Kennnedy family friend" as described by the first article. In 1962, the seat was won by Ted Kennedy.
I keep repeating this question but no one answers, using the AP or Stratribunes full scans of all chllenges, isn't it possible for someone to produce who the winner is considering the rullings that we know about?
To Nate's post I'd like to add the following missing items:
1) Tribmle constantly kept referring to the alleged double counting of the ballots when the duplicates are missing as "certain facts" or "almost or nearly certain facts", and got admonished and fairly harshly by Justice Anderson for doing so.
2) Franken camp had an excellent counter to Trimble's "certain facts". In addition to the Trimble's own email that Nate alluded to, Elias also stated that he was in a possession of a sworn affidavit from the Dakota Co/Eagan/P3 election judge wherein she indicated as to an alternate reason for the missing duplicate ballots from her precinct. She stated that the dupes were "mislaid originally", but then sent under separate cover. "And that," Elias summarized, "shows that Coleman camp theory is just that - a theory, and as such, counter to their claim as to the unmarked duplicates being the sole possible reason for the absence of duplicates, there is a universe of alternate theories" (I am quoting, though this is not an exact quote -LL). He then said that theirs is at least just as plausible an explanation as Trimble's and just goes to show that the judgment indeed cannot be made on the face of the original ballot per se, and as such is outside the scope of the Canvassing Board.
3) Elias also made a very powerful appeal as to why these 7 absent duplicates from Eagan represent more than that: he asserted that the Coleman campaign wants to apply the principle of these 7 ballots across the entire universe of missing dupes across the state in an effort to disenfranchise hundreds, if not thousands of votes. Powerful stuff. He then produced and recited Trimble's own email as per Nate.
4) Trimble was pinned, and tried to wiggle out, but there was no wiggle room. In light of the equal protection issue that Nate cited (Franken campaign was not allowed to challenge absent dupes in Wright County by the very representative of the SoS Office who was running the recount! Nor were they allowed to even keep track of how many of such instances there were), - and there were 3 counties that Elias named where they were not allowed to do challenge similar ballots, Trimble in the end conceded when pressed by one of the CB members (Anderson, afair).
5) So their SC suit strikes me as particularly pathetic and desperate in light of the legal beating that Coleman folks sustained yesterday between the hours of 5 and 5:30 PM. It is my fervent hope that the SC of MN does not bend over backwards for Coleman for this one as they did for the rejected absentees. This is a slam dunk, imho. The Coleman camp has pretty much painted themselves into a corner with their arguments thus far.
~ Latte
To those wondering about military ballots I found this poll conducted by the military times: http://militarytimes.com/static/projects/pages/081003_ep_2pp.pdf. I don't know what their methodology was, so there is no way of knowing if there is some bias here, but it shows a pretty strong Republican lean as expected. Amongst African American service members, they tended strongly for Obama as expected, but their presence in the military must not have been large enough to make an impact.
Overall across the entire military, according to this poll, McCain led Obama 68% to 23%.
@shadowgunman
Actually, for a change the STrib sems to be keeping proper count themselves. Their starting point was the collection of all ballots, with challenges decided by their reader poll. This gave F + 40. They regularly update as Board decisions differ with their reader polls. At last count, these changes had shifted the result to something like F +75. They caution that there is a systematic tendency of the Board to grant more "ID" challenges than did the readers, who had to go to some trouble to see those problems. Since they're now looking at challenges by C, they say the F lead will dwindle. However, that effect looks pretty small, so that a win by F in the neighborhood of 50 sounds like a good bet.
Then all the other issues start.
Update:
Coleman now has a second petition out this one is a Restraining Order against the Canvassing Board from issuing a certification of the results.
Lets see Coleman has petitioned the court 3 times, that is almost equal to number of times he won...Funny I keep thinking about some Senator from MN's campaign saying that the people of MN would not like Franken going to court over what was obviously their stated decision.....
Now it sounds more like Damn the people I like my place in D.C. Oh, and how the %#$% did I lose to Stuart. Oh Nooes I'll never be President in Chief now. What the FBI is after me, well they are politically motivated and are coming after me because Franken told them to, because Franken controls the Illuminati because he's a jew. Wait I am a jewish too, but he stole my precious from me stole it he did. Collum, Collum. Collum needs his precious senate seat. We'll get them wont we precious.
I'd like a little more certainty on the statement that "military personnel generally vote Republican".
I was in the military. The majority of military personnel are enlisted, a group that is racially diverse, and selected against privilege. Officers - the minority - are a group generally comprised of legacy admissions, other rich kids, and a few college grads with real degrees.
Military personnel may tend to vote Republican in greater numbers, but it's probably closer than you think. And I wouldn't be surprised if that assertion turned out not to be true.
Sorry for the double post. I found a link that includes the methodology to the military times poll that I referenced in my last post. Here it is: http://www.armytimes.com/news/2008/10/military_elexpoll_102708/.
Simply put, they poll their readers. My guess is that military times readers, who actually have time to read and then respond to the survey, would tend to be older career soldiers. This would tend to skew the results more toward McCain than one might expect from a broad sampling. However, at least this gives us an idea, so Nate's remark "...military personnel generally vote Republican." is probably accurate, although maybe not as bad as the 70% as the poll suggests.
-Dave
@mbw
I was under the impression that actually that count is controlled by the participants, and I assumed it was being raided by Partisians after they realized what horrible PR front it was giving them, if it being dynamically upadated where does it say so?
Now I am spamming. Sorry! It seems many posters are wondering about this.
Here is the best link for the military times poll:
http://www.militarytimes.com/news/2008/10/military_poll_100508w/
Once again, sorry for all the multiple posts!
Nate -- I guess you're not a lawyer. There's nothing wrong with citing court decisions from another state, if they are interpreting a similar law -- especially if your state's courts haven't considered the issue before.
Back in the day, I prepared a legal brief citing Florida decisions in a New York case that delivered Gov. Pataki's first legal defeat. Out-of-state decisions can be very persuasive, even if they're not controlling authority.
On the numbers -- since you're a number guy -- did Franken gain in the recount, before challenges were considered? Coleman's arguing that the recount included at least 130 double counts. They claim these #s correspond to increases in precinct vote totals during the recount. If Franken gained votes originally at the recount, it would stand to reason that some of that gain would be due to the double counting. Ergo, get rid of the double-counted ballots, and Franken's lead should shrink.
One big question: has the current official tally already added back in the 133 "lost" votes from the misplaced envelope that could not be counted during the recount? As I recall, this resulted in a net gain to Franken of something like 42 votes. Does the official tally account for these votes yet?
Joe -
Your link doesn't work.
What I was, and still am, disputing, is your earlier statement that MA regularly changed its Senate vacancy law. I believe it has only been changed once - in 2004.
Your point was, since that has changed multiple times before, it won't be a problem changing now. I dispute the facts behind your premise.
And if MA changes back to what it was before, what do they do and Patrick loses in 2 years to a Repub - change the law again?
I stand by my point. There is a real risk to Dems in MA changing the law so soon, and in particular when the who Blago fiasco is underway. That's the type of thing that stirs up major local upset and possible backlash.
Quote of the day: Al Franken is exactly the kind of creature the founding fathers had in mind when they set up the senate. So says porridge gump.
Prediction for 2009: the osama presidency will turn into a complete '' just like 538 has become.
About these "potential duplicate" challenges.
I didn't think they had been included yet? Everything I saw involved them "putting those into a folder" when they would encounter them.
If that is the case, there would be no subtraction of votes if they are thrown out (which seems unlikely to me).
People keep commenting as if that would take votes away from Franken's tally. But if they haven't been counted yet, it would simply lessen any additional amount, not subtract from the current tally.
Is that an accurate assessment?
Also, since Franken's campaign was actually scolded - in a letter no less - and prevented from placing similar challenges in a few jurisdictions, it hardly seems reasonable to think the court will allow Coleman's challenges to move forward when Franken's campaign has been disenfranchised from seeking the same avenue.
Any thoughts on that?
wv: uppensen - sounds like Minnesota may be about to "upensen" Franken to the Senate.
@Joseph- It's not an accurate assessment if you're starting with the STrib projection, which alreay includes those votes. If you're starting with something else, you're wandering in the wilderness.
Of course you're right that C's lawyers are being grossly unfair and inconsistent. It's what they're paid for.
Thanks for the clarification Michael.
That's the part I was missing (the fact that the Strib projection was including them.) Got it now.
sfergus
Yes, the law had only been changed once. Many thanks for pointing that out and sorry for neglecting to give you props.
As for the current situation in MA, it is all hypothetical. The law would not be changed back unless the governor and legislature were in agreement. Funnily enough, Joan Vennochi, one of the Globe's opinion columnists, is really laying waste to those politicians that want to change the law back.
As for my own personal opinion, I find it odious that special elections are not the norm for interim replacements. Of course, they cost money, so people in power can pretend to save us our own money.
sfergus
Yes, the law had only been changed once. Many thanks for pointing that out and sorry for neglecting to give you props.
As for the current situation in MA, it is all hypothetical. The law would not be changed back unless the governor and legislature were in agreement. Funnily enough, Joan Vennochi, one of the Globe's opinion columnists, is really laying waste to those politicians that want to change the law back.
As for my own personal opinion, I find it odious that special elections are not the norm for interim replacements. Of course, they cost money, so people in power can pretend to save us our own money.
The fact that the Franken campaign was denied the right to challenge possible problems with duplicates, or even allowed to track these challenges means that another entire recount would be required to find ALL the possible problems with duplicates.
The Coleman campaign wants to ignore this, and only adjudicate their challenges. This would be unequal based upon the Coleman campaign's own standards.
The act of denying the Franken campaign of challenging the exact same type of ballots that Coleman wants to adjudicate, necessitates a full re-count in order for there to be a fair adjudication. There is already a process for a second recount. It's called a second recount. And if the Coleman campaign wants to pay for a second recount after the first one is complete, they certainly can.
Christopher and KennyB,
Thanks for the poetry, which was muy appropriate. Thanks for sharing.
@sfergus
Best detailed look at different states Senate vacancy laws was a Chicago Tribune blog post:
http://tinyurl.com/3l5eg4
California's is fun: temporary appointment, which is up for election at the next available election or special election (i.e. if there is a special election for something other than Senator, Senator is tacked on to that—at least that's how I understand it).
Whoops, I see you found it already.
Hoppie,
Also, please don't discount the situation the military is in currently. Alot of enlisted personnel may have voted GOP before the war broke out or shortly after the invasion, when we still thought there were WMD and before the insurgency. The near hopelessness of the Iraqi Front - fighting to liberate Iraqis from what? Saddam's dead, so it's not him. The enemy at this point is the Iraqis themselves, who just don't want the soldiers there. The Afghan Front has been largely forgotten and underfunded, with an enemy right over the border in Pakistan that for some odd reason our military is not allowed to touch. The GOP candidate's strategy seems more like a repeat of what all they've been doing up until now, whereas the Democrat has openly said, "Yeah, let's go into Pakistan and get em and end this thing", which could appeal to the enlisted there. And he's also said, "look, the Iraq thing was bullshit from the very start and we have to leave", which probably seems less depressing than staying there and fighting to liberate a people that don't want us to liberate them, and would really just prefer if we went home.
The soldiers on the ground probably have a very different view of the war than the officers and the Bush Cabinet. While they,ll bravely follow whatever orders they're given, my bet is they understand the wisdom of Obama's position and the insanity of the GOP's.
Which could influence them to vote Democrat downticket. Maybe they don't really care that much for Franken per se, and during peacetime maybe would not vote for him. But if voting GOP means the war in Iraq drags on for another 4-8 years and the Afghan war continues to be underfunded, forgotten, and restrained from escalating into the Pakistani border regions where the enemy is based, they may be inclined to hold their noses and vote for the candidate most likely to pursue a more realistic agenda.
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