To review the basic ground rule: the races are ranked in terms of their likelihood of changing parties. In some cases, the ranking is the result of an incumbent being vulnerable, and in other cases, because the incumbent may retire -- we try our best to mesh these things together into some inkling of probability. Away we go:
1. Florida (R-Open)
Without Bush in the race, the field is wide open on both sides. Given an open seat and one of the purplest purple states in the country, that means this race meets the very definition of a toss-up.
2. Nevada (D-Reid)
No, the Republicans don't really have a credible opponent yet, but one thing the past few weeks have made clear is that Reid is going to be a focal point for criticism -- from both the right and the left -- and there's a strong likelihood that someone will come out of the woodwork. I also think people may be underrating the chances that Reid gets sick of it all and retires.
3. Pennsylvania (R-Specter)
Looking more likely that Specter may face a primary challenge, but the general election remains his central concern. The Chris Mathews rumors have cooled off some, but it's not clear whether that's good or bad news for Specter.
4. Ohio (R-Voinovich)
5. Kentucky (R-Bunning)
6. Kansas (R-Open)
Remains an overlooked race; if Kathleen Sebelius wants the seat, she probably has a leg up. But there are rumors that she'll become chancellor at the University of Kansas rather than running for Senate.
7. Missouri (R-Bond)
8. Illinois (D-??)
I'm not sure what other possible permutation of circumstances could do more to make a generally safely blue seat competitive. Still, the Democratic bench is fairly strong, and they're lucky this is all taking place in Illinois instead of, say, Ohio.
9. Colorado (D-Bennet)
I was prepared to move this race down when it looked like Denver Mayor John Hickenlooper was going to be Ken Salazar's replacement, but with unknown schools superintendent Michael Bennet getting the nod instead, it becomes a much more attractive target for Republicans. Still, the state is turning bluer, and most of their candidates haven't polled very well against nearly any Democrat. They may also wind up punting on this race if they make the mistake of nominating Tom Tancredo.
10. North Carolina (R-Burr)
11. New Hampshire (R-Gregg)
12. Texas (R-Open?)
It appears nearly certain that Kay Bailey Hutchinson will vacate her seat to run for Governor, and now the Republicans will have a formidable opponent, as moderate Dem and Houston Mayor Bill White has declared his interest in the race.
13. Iowa (R-Grassley)
Although polling suggests that Tom Vilsack could make a race of things, it's improbable that he'll run unless Grassley retires -- and what I'm hearing from Iowa constituents is that Grassley is unlikely to do so. (ed: Forgot that Vilsack will become Secretary of Agriculture. Still, if Grassley retires, there will be no shortage of strong Democratic challengers for the seat --nrs).
14. Delaware (D-Open)
15. Arizona (R-McCain)
16. New York (Jr.) (D-??)
Long Island Congressman Peter King is apparently interested in challenging Caroline Kennedy -- or whomever else Governor Paterson puts in this seat. Although King himself is not very likely to win, the fact that he's willing to give up a House seat that he'll probably never win back suggests that Republicans don't consider the race off-limits. Democrats might not consider the seat off-limits either, potentially giving Kennedy a vigorous primary challenge.
17. Arkansas (D-Lincoln)
18. California (D-Boxer)
19. North Dakota (D-Dorgan)
20. Connecticut (D-Dodd)
21. Alaska (R-Murkowski)
New polling in this race suggests that Lisa Murkowski is vulnerable, most certainly to a primary challenge by Sarah Palin and possibly in the general election too. But, the Democratic bench in Alaska is not strong.
22. Oklahoma (R-Coburn)
23. Wisconsin (D-Feingold)
24. Hawaii (D-Inoyue)
25. Georgia (R-Isakson)
26. Louisiana (R-Vitter)
27. Maryland (D-Mikulski)
28. South Carolina (R-DeMint)
29. Washington (D-Murray)
30. Vermont (D-Leahy)
31. Alabama (R-Shelby)
32. South Dakota (R-Thune)
33. Indiana (D-Bayh)
34. Oregon (D-Wyden)
35. Utah (R-Bennett)
36. New York (Sr.) (D-Schumer)
37. Idaho (R-Crapo)
The results are a fairly close match for our unscientific poll of FiveThirtyEight.com readers; 57 percent of you are opposed to Burris taking his seat, and 43 percent in favor
I would say that I'm modestly surprised by these results. I didn't necessarily expect the majority to support seating Burris -- but, I thought he had become a somewhat more sympathetic figure, perhaps having some success in his myriad media appearances portraying himself as an innocent bystander (victim?) in all of this. What's interesting, though, is that there are not particularly large partisan differences in all of this. In the Gallup poll, Democrats were opposed to seating Burris by a 49-30 margin, and Republicans by a 61-25 margin. Americans seem to see this as a Good Government issue rather than a partisan one.
Still, as Chris Cillizza outlines, Harry Reid is left with few good options. The problem in a nutshell is that there's no easy way to block Burris from taking his seat. Doing so would entail several more confrontational and potentially embarrassing moments on the Hill followed by a protracted legal battle. Nor do any of the "deals" making the rounds seem particularly viable; Burris could tell read that he wouldn't run in 2010 in exchange for being seated, for instance, but nothing would bind him to that promise. Perhaps as a result of this, both a majority of our readers and the punters at Intrade think it more likely than not that Burris will eventually be seated.
The exception, of course, might be if Reid were to persuade the Illinois legislature to pass a special elections law, while probably allowing Burris to take his seat on an interim basis until the special election was held. There are numerous benefits to this: the special election option is quite popular both with Americans and Illinoisans; the Democrats could get Burris's vote in the meantime with little political fallout and no risk of a legal battle; and, if a Democrat won the special election, they would probably put the Rod Blagojevich issue to rest and enter as the heavy favorite in 2010, when the seat is up for a full six-year term.
The risk, naturally, is that the Democrats might lose the seat to Mark Kirk or another Republican. But given that all of the alternatives to a special election carry their own risks, we're getting pretty close to the point where it is the best option even from a zerosum, partisan perspective. And if a special election is anywhere close to the best option from a capital-D Democratic perspective, surely the fact that is the best option from a lower-case-D democratic perspective should carry some weight.
What this analysis seems to be taking for granted is that the tax cuts are something the Obama administration does not want on their own merits. This, however, is far from self-evident. Obama's economic team is fairly centrist, number one. Obama campaigned on a tax cut, number two (albeit a tax cut paired with a tax hike for the wealthy). And number three, even most liberal economists seem to think that some measure of tax cuts are a decent idea, although there are questions about which taxes should be cut and in what amounts. (Likewise, most conservative economists seem to think that some measure of spending increases are a good idea -- it's just a question of how much).
Basically, I would resist the temptation on either side to see the stimulus in too overtly ideological terms. The ordinary rules are suspended during a severe recession: what matters is -- empirically, theoretically -- What Works. Instead, I would encourage everyone to cut down on their consumption of political blogs for the next few weeks and instead read more of Brad DeLong and Greg Mankiw and Paul Krugman and Tyler Cohen. Those are the sorts of people I'm interested in listening to on this; all others must bring data.
Where I think there is more room for partisanship is in discussing how we spend what we spend, and how we cut taxes where we cut them. An $800 billion stimulus package that consisted of $500 billion in alt.energy investments and $300 billion in FICA tax cuts would be quite progressive -- and quite different from one that contained $500 billion in defense spending and $300 billion in capital gains tax cuts, even if the proposals happened to be relatively similar in terms of the immediate-term objective of ending the recession.
This is not to say that the how much questions are entirely within the domain of economic analysis, nor that the how questions are entirely within the domain of political analysis -- there are obviously some overlaps between the two. But the trade-off between, say, building bridges and building solar power grids is easier for political folk to understand than the relative abstraction of whether to spend a marginal $100 billion at the cost of running up the deficit. For the latter sorts of questions, I would tend to defer to the economists in the audience.
Coleman's problem, however, is not so much that his argument is legally unsound but that it's not especially likely to benefit him even if the Court rules in his favor. The Court had previously asked the counties to double-check their absentee ballots and identify any that might have been rejected in error; the counties did that, and came up with a collective 1,300 or so. The process the Court set up required both campaigns to agree on a ballot before it was counted, and about 400 ballots were vetoed by one or the other campaign. The other 900 were forwarded to the Canvassing Board and were counted on Saturday.
My guess is that the 400 vetoed ballots have a pretty strong chance of being counted at some point. (Will they benefit Coleman? Given that the absentees that were counted went strongly for Franken, the odds are probably not.) But this is not the subject of Coleman's claim -- instead, he's stating that there are some 650 additional erroneously rejected ballots that the counties missed during their sweep of absentees.
What Coleman wants the Court to do, in other words, is to order that the counties re-re-examine their absentee ballots. What might happen if that takes place?
First of all, I doubt that very many of the ballots on Coleman's list of 650 are going to be found to have been rejected improperly. Remember, the counties have already sorted through their absentees at least twice -- once on Election Night, and then a second time in accordance with the court order. Some counties, in fact, have even gone through their absentees a third time in accordance with the wishes of the Coleman campaign, and where they have, such as in Ramsey and Pipestone counties, the counties found that all the ballots on the Coleman list had been rejected properly. The process is somewhat analogous to vacuuming your floor; you aren't going to gobble up nearly as much dust on your second sweep through the living room as you did the first time around, even if you'd done a haphazard job. So this is problem #1 for Coleman. His list of 650 ballots is going to be significantly pared down, and will probably wind up closer to 65 than 650.
Secondly, those absentee ballots are sealed, so we don't know how many of them will turn out to be votes for Coleman. Presumably, the Coleman campaign thinks that the ballots are more likely than not to favor him, or he would not have included them on his list. But "more likely than not" might mean 50% Coleman ballots, 35% Franken ballots, and 15% other. If all 650 ballots were counted with those percentages, Coleman wouldn't get more than a 98-ballot net gain, less than half of his present deficit with Franken.
And thirdly, precisely because the ballots on Coleman's list are likely to favor Coleman, that also means there is some undetermined number of ballots that were also rejected in error but which are likely to favor Franken. Let's say that the Coleman campaign is sorting through a spreadsheet of rejected absentee ballots, and identifies one from Stanley Terwilliger of Eden Prarie, Minnesota, who has voted Democratic in every election since 1964, contributed $2,300 to the Franken campaign, and once got in an ice hockey brawl with Norm Coleman's twin brother Lars. Is that ballot going to make Coleman's list? Uh, probably not. But if the Court ordered a comprehensive re-recounting of the absentee ballots, it probably would get swept in -- and would turn out to be a Franken ballot.
Let's be frank: Norm Coleman doesn't have much of a future in electoral politics. Defeated Presidential candidates sometimes have nine lives, but defeated Senatorial candidates rarely do, and in his career running for statewide office, Coleman has lost to a professional wrestler, beaten a dead guy, and then tied a comedian. He doesn't have much to lose by fighting this to its bitter conclusion. But it's hard to envision how he'll come up with enough ballots to overtake Franken.
There is nothing intrinsically wrong with taking such a position. The Journal's editorial, however, has several basic facts wrong, makes several other assertions based on flimsy or nonexistent evidence, and generally has little understanding of the process that has taken place to date.
Let's go through the editorial paragraph by paragraph.
Strange things keep happening in Minnesota, where the disputed recount in the Senate race between Norm Coleman and Al Franken may be nearing a dubious outcome. Thanks to the machinations of Democratic Secretary of State Mark Ritchie and a meek state Canvassing Board, Mr. Franken may emerge as an illegitimate victory"Machinations": there's a ten-dollar word. Ritchie may be a Democrat, but he was also democratically elected -- lower case 'D' -- by the people of Minnesota. And as for the Canvassing Board, it arguably leans to the right, consisting of two members appointed by Tim Pawlenty, one appointed by Jesse Ventura, one elected member, and Ritchie.
Mr. Franken started the recount 215 votes behind Senator Coleman, but he now claims a 225-vote lead and suddenly the man who was insisting on "counting every vote" wants to shut the process down. He's getting help from Mr. Ritchie and his four fellow Canvassing Board members, who have delivered inconsistent rulings and are ignoring glaring problems with the tallies.Actually, Coleman is having far more trouble with the Minnesota Supreme Court, which generally has a conservative reputation, than he is with the Canvassing Board. They're the ones who rejected his petition on duplicate ballots, and they're the ones who rejected his notion of wanting to tack on additional ballots to the absentee ballot counting.
Under Minnesota law, election officials are required to make a duplicate ballot if the original is damaged during Election Night counting. Officials are supposed to mark these as "duplicate" and segregate the original ballots. But it appears some officials may have failed to mark ballots as duplicates, which are now being counted in addition to the originals. This helps explain why more than 25 precincts now have more ballots than voters who signed in to vote. By some estimates this double counting has yielded Mr. Franken an additional 80 to 100 votes.There are 25 precincts with more ballots than voters? I'm not sure this is actually true. There were certain precincts with more votes counted during the recount than there were on Election Night -- which is not surprising, considering that the whole purpose of a hand recount is to find votes that the machine scanners missed the first time around. I have not seen any evidence, on the other hand, that there are precincts with more votes than voters as recorded on sign-in sheets. And the Coleman campaign evidently hasn't either, or it presumably would have presented it to the Court, which rejected its petition for lack of evidence.
Also, note the weasel-wordy phrase "by some estimates", which translates as "by the Coleman campaign's estimate". There is no intrinsic reason why Franken ballots are more likely to be duplicated than Coleman ballots, especially when one significant source of duplicate ballots is military absentees, a group that presumably favors the Republicans. Coleman, indeed, only became interested in the issue of duplicates once he fell behind in the recount and needed some way to extend his clock. Before then, his lead attorney had sent an e-mail to Franken which said that challenges on the issue of duplicate ballots were "groundless and frivolous".
This disenfranchises Minnesotans whose vote counted only once. And one Canvassing Board member, State Supreme Court Justice G. Barry Anderson, has acknowledged that "very likely there was a double counting." Yet the board insists that it lacks the authority to question local officials and it is merely adding the inflated numbers to the totals.The Canvassing Board indeed determined that it lacked the jurisidiction to handle duplicate ballots, telling Coleman that he had to go to court. Which he did. And the court threw the case out because Coleman didn't have any evidence.
In other cases, the board has been flagrantly inconsistent. Last month, Mr. Franken's campaign charged that one Hennepin County (Minneapolis) precinct had "lost" 133 votes, since the hand recount showed fewer ballots than machine votes recorded on Election Night. Though there is no proof to this missing vote charge -- officials may have accidentally run the ballots through the machine twice on Election Night -- the Canvassing Board chose to go with the Election Night total, rather than the actual number of ballots in the recount. That decision gave Mr. Franken a gain of 46 votes.Actually, there is some proof: the number of votes identified during the recount fell 134 short of the number of voters who signed in on Election Night in this precinct.
Meanwhile, a Ramsey County precinct ended up with 177 more ballots than there were recorded votes on Election Night. In that case, the board decided to go with the extra ballots, rather than the Election Night total, even though the county is now showing more ballots than voters in the precinct. This gave Mr. Franken a net gain of 37 votes, which means he's benefited both ways from the board's inconsistency.The decisions are not inconsistent if the Canvassing Board's objective is wanting to count every vote.
And here again the Journal is going on about the county "showing more ballots than voters in the precinct". If there is evidence of this, it would be news not just to me but also to the Coleman campaign.
And then there are the absentee ballots. The Franken campaign initially howled that some absentee votes had been erroneously rejected by local officials. Counties were supposed to review their absentees and create a list of those they believed were mistakenly rejected. Many Franken-leaning counties did so, submitting 1,350 ballots to include in the results. But many Coleman-leaning counties have yet to complete a re-examination. Despite this lack of uniformity, and though the state Supreme Court has yet to rule on a Coleman request to standardize this absentee review, Mr. Ritchie's office nonetheless plowed through the incomplete pile of 1,350 absentees this weekend, padding Mr. Franken's edge by a further 176 votes.This is just blatantly false. All counties, red and blue alike, were instructed by the Supreme Court to identify any wrongly-rejected absentee ballots, and all of them did. In certain counties, Coleman claims to have identified additional wrongly-rejected absentee ballots above and beyond the ones that county officials identified -- but these were counties that nevertheless complied with the court's order and turned in their lists of ballots to the state.
Both campaigns have also suggested that Mr. Ritchie's office made mistakes in tabulating votes that had been challenged by either of the campaigns. And the Canvassing Board appears to have applied inconsistent standards in how it decided some of these challenged votes -- in ways that, again on net, have favored Mr. Franken.I watched the video feed of the challenge adjudication process and did think there were some number of inconsistencies, particularly in the ways that ballots with 'X's on them were handled. But, I was looking at .pdfs of the ballots, whereas the Canvassing Board got to look at full-color, three-dimensional copies, which may make some difference in borderline cases. More to the point, however: (1) both candidates had their lawyers in the room when this adjudication was taking place, and had every right to press the Board on perceived inconsistencies, and (2) there is no evidence whatsoever that these inconsistencies hurt any one candidate particularly more than the other.
The question is how the board can certify a fair and accurate election result given these multiple recount problems. Yet that is precisely what the five members seem prepared to do when they meet today. Some members seem to have concluded that because one of the candidates will challenge the result in any event, why not get on with it and leave it to the courts? Mr. Coleman will certainly have grounds to contest the result in court, but he'll be at a disadvantage given that courts are understandably reluctant to overrule a certified outcome.He'll be at a disadvantage because fewer people voted for him.
Meanwhile, Minnesota's other Senator, Amy Klobuchar, is already saying her fellow Democrats should seat Mr. Franken when the 111th Congress begins this week if the Canvassing Board certifies him as the winner. This contradicts Minnesota law, which says the state cannot award a certificate of election if one party contests the results. Ms. Klobuchar is trying to create the public perception of a fait accompli, all the better to make Mr. Coleman look like a sore loser and build pressure on him to drop his legal challenge despite the funny recount business.But it doesn't contradict Congressional precedent, as the Congress generally has seated provisional winners while challenges were taking place, including Republican Representative Vern Buchanan in 2007 and Democratic Senator Mary Landrieu in 1997.
Minnesotans like to think that their state isn't like New Jersey or Louisiana, and typically it isn't. But we can't recall a similar recount involving optical scanning machines that has changed so many votes, and in which nearly every crucial decision worked to the advantage of the same candidate. The Coleman campaign clearly misjudged the politics here, and the apparent willingness of a partisan like Mr. Ritchie to help his preferred candidate, Mr. Franken. If the Canvassing Board certifies Mr. Franken as the winner based on the current count, it will be anointing a tainted and undeserving Senator.New Jerseyites! Louisianans! Cancel your subscriptions! And the rest of you might as well too.
The districts these 39 Congressmen serve, however, are not very representative at all. All 39 contain a higher percentage of African-Americans than the population as a whole, ranging from Keith Ellison's district in Minneapolis, which is just barely more black than the national average, to Jesse Jackson Jr.'s on the South Side of Chicago, which is 68 percent African-American. About 64 percent of the members -- 25 of 39 -- come from districts that contain an outright black majority. The districts are also much more Democratic than the country as a whole, with an average PVI of D +25; only Sanford Bishop's district in Georgia, which has a PVI of D+2, is anywhere close to the national average.
The chart below estimates the percentage chance that the Representative in a given Congressional District is black given the African-American population in that district, as based on a logistic regression. The chances of having a black Representative are virtually nil until the African-American share of the population hits 25 percent, at which time it begins to accelerate rapidly until the black population hits 60 percent, after which point having a black congressman is virtually certain.
The problem with this is that, while there are a decent number of Congressional Districts that have African-American populations of 25 percent or more, only six states do, and five of the six are culturally conservative areas in the Deep South. Suppose that we treat each state as though it were a Congressional District and evaluate its chances of having a black congressman based on two factors: its African-American population and its Partisan Voting Index.
State Black PVI ProbIf the states were Congressional Districts, then the most likely one to elect a black Representative would be Maryland, which nevertheless has only a 15 percent chance of doing so. All other states are below 10 percent, and in most cases, the probabilities are very small indeed.
Maryland 28.9 D +9 15.2%
Mississippi 37.4 R +8 9.0%
Louisiana 31.6 R +6 5.6%
Georgia 29.8 R +6 4.3%
Delaware 20.7 D +7 4.3%
New York 15.5 D +15 3.9%
South Carolina 28.6 R +7 3.3%
Alabama 26.3 R +9 2.1%
Illinois 14.8 D +7 1.5%
North Carolina 21.4 R +5 1.5%
New Jersey 13.6 D +8 1.5%
Virginia 19.6 R +3 1.4%
Michigan 14.1 D +4 1.1%
Florida 15.4 D +1 1.0%
Tennessee 16.8 R +3 0.8%
Arkansas 15.6 R +3 0.7%
Connecticut 9.5 D +9 0.6%
Massachusetts 6.1 D +14 0.5%
Of course, the states are effectively big Congressional Districts for purposes of electing senators and governors. Suppose you added up the probabilities of each state electing a black congressman, and then multiplied it by two since each state gets to elect two senators. How many black senators would you expect? You'd expect there to be about one -- or more precisely, 1.2. And you'd need to halve that number to estimate the expected number of black governors, which would be 0.6.
If one looks at the composition of the House of Representatives, then, one shouldn't be surprised that there are so few black senators and black governors, because states are far more heterogeneous (racially and otherwise) than individual Congressional Districts, and African-Americans are by and large not getting elected to the House outside of a certain number of highly black, largely homogeneous, and often heavily gerrymandered Congressional Districts in the urban North and the rural South.
The question, of course, is why African-Americans aren't getting elected in these districts. Racism is undoubtedly part of the answer, but it probably can't be a complete one now that the country has just elected Barack Obama to the White House.
It would be helpful to know where in the chain the link has been broken. Are African-Americans declining to become candidates in swing districts? Are they becoming candidates, but losing their party's nomination? Or are they winning the nomination, but losing in the general election? I don't have this sort of information handy, and so I cannot say for sure.
I suspect that a lot of the problem, however, is that as Congressional Districts have become more and more gerrymandered, leading to the creation of more and more majority-minority districts following the 1980 and 1990 censuses, the black political apparatus has become more and more 'ghettoized'. Black candidates have not had to develop a message that appeals to white voters, because most of them don't have very many white voters in their districts (about half the nation's African-American population is limited to the 60 blackest Congressional Districts). Nor do they have very many conservative voters in their districts, and so they have not had to develop a message that appeals to conservatives, even though the black population itself is far more diverse in its political views than is generally acknowledged.
Because they are not very representative of their states as a whole, moreover, these districts are also not likely to be very good launching pads for ascension to the Senate or to the governor's mansion. Do I think Jesse Jackson Jr. would have some trouble winning statewide office? I do -- but I also think that Pete Stark, who lives in a mostly white and Asian but extremely liberal district in the Bay Area, would have trouble becoming a senator in California.
Conversely, of course, the majority-minority districts drain black voters from surrounding districts, and so white politicians have not had to develop messages that appeal to black voters. This may be particularly problematic for Republicans, who went from winning 16-18 percent of the black vote for the Presidency in the 1970s to only about half of that now.
Democrats ought to be mindful of these things when redistricting occurs again after 2010, aggressively challenging Republicans on both the wisdom and the legality of creating ghettoized Congressional Districts. Majority-minority districts harm Democrats by creating surplus Democratic votes, and in the long run, they probably hurt African-Americans too.
My first reaction is that this is all very ... predictable. Kaine was facing a very challenging set of circumstances if he wanted to continue to hold elected office: Virginia has an unusual law that prevents governors from serving consecutive terms (although Kaine could, theoretically, run again in 2013), and meanwhile, both of Virginia's Senate seats are now filled by Democrats, and relatively young ones at that. Kaine's political aspirations for at least the next four years, therefore, were going to be pretty much limited either to this particular job or to a position in Barack Obama's cabinet. Given that Kaine was one of the first politicians anywhere to jump on the Obama bandwagon, it's not surprising that he was paid back.
Kaine does strike me as being a pretty good fit for this position, though. He oozes a certain sort of optimistic sincerity that ought to play pretty well on television, where he's liable to be deployed ubiquitously on the Sunday Morning talk circuit, perhaps sometimes playing "good cop" to Harry Reid and Nancy Pelosi. It seems probable that Kaine's role is going to be more about public relations than tactics, with the latter function to be fulfilled in large part by elements of the Obama apparatus itself.
The appointment will also give Kaine quite an opportunity to define himself as a candidate for national office, something that Kaine is plenty young enough to be thinking about.
This is why. Presently the Democrats have a 57-member caucus, counting neither Burris nor Franken. However, because there are currently only 98 senators, this reduces the number of votes required to break a filibuster from 60 to 59. (Vacancies are not counted when calculating the number of votes needed to break a filibuster; three-fifths of 98 is 58.8, which rounds up to 59). Therefore, the Democrats would need two crossover votes to pass a cloture resolution.
But now, suppose that Franken gets seated but Burris doesn't. The Democrats add a member to their caucus, brining them to 58 members. However, with 99 senators rather than 98, the filibuster threshold goes back up to 60 votes (three-fifths of 99 is 59.4, but the rule in this instance requires rounding up). Thus, the Democrats remain two votes shy of breaking a filibuster.
Once the Democrats get senators seated in both Illinois and Minnesota, however, they'll have 59 votes out of the 60 they need, leaving them just one vote shy -- and Sens. Specter, Snowe, et. al. ripe for the picking.
So long as it looked as though the Minnesota race was going to take a long time to resolve, then, the Democrats really weren't giving anything up by failing to seat Burris -- his vote only really helps them if Franken has been seated too. Suddenly, however, with Franken having amassed a 225-vote lead on Norm Coleman, the landscape looks different. While the Coleman campaign is still suggesting that it will contest the election, one wonders what sort of appetite Coleman will have to accumulate more and more legal bills if he determines his situation is hopeless. At the very least, the likelihood has improved that the race will be resolved within two or three weeks, rather than two or three months.
So the stakes are a now a little higher for Harry Reid: Illinois, rather than Minnesota, now appears as though it may be the limiting factor in getting the Democrats into as advantageous a position as possible.
One option that hasn't been much discussed, by the way, is that of seating Burris temporarily and then holding a special election later on. This would allow the Democrats to sort of have their cake and eat it too, getting their 59th vote for several months while still creating a relatively clean break from Blagojevich. Of course, the Democrats would risk losing their seat in the special election, but perhaps the Republicans would reward them for that risk by agreeing to seat Franken while Coleman's election challenges are pending, something they seem disinclined to do so far.
All told, Franken gained a net of 176 ballots from the 952 under review according to The Uptake's unofficial count, putting him 225 votes ahead in the recount overall. Excluding disqualified ballots, Franken won 53.7 percent of the votes counted today, Coleman 34.1 percent, and other candidates 12.4 percent. Franken's 225-vote advantage is now slightly larger than the one Norm Coleman held before the recount began, when he led by 215 votes based on the certified Election Night tally.
Although the absentee ballots were expected by all observers to help Franken's prospects, the nearly 20-point margin that he ran up on Coleman today was surprisingly large; two pre-election polls that surveyed absentee voters had Franken winning that group by 8 points and 12 points, respectively. (n.b. Originally missed the Research 2000 poll on this -- nrs). It should also be remembered, however, that the Democrats made a large nationwide push for early and absentee voters this year, with Barack Obama overperforming by as many as 20-30 points among those voters in certain states.
The other possibility, of course, is that the Franken campaign did a more effective job of using its veto power on absentee ballots, perhaps by taking better advantage of voter lists.
Either way, a number of legal stratagems that might have seemed appealing to the Coleman campaign might now be somewhat mooted. For instance, even if all 130 ballots that the Coleman campaign claimed were double-counted for Franken were removed from his tally (but no ballots at all had been double-counted for Coleman), Franken would maintain a significant advantage. With Franken doing so well among the absentee ballots that were counted today, moreover, any Coleman attempts to get more absentee ballots counted would seem to have a high risk of backfiring.
EDIT: It appears that Franken's lead is now 225 votes, not 223 as previously reported, based on an a count provided orally by state officials in St. Paul today.
Right now, with Jackson's name being at least tangentially tied up in the Blagojevich scandal, he might well have a difficult time winning statewide office in Illinois. But these communications between Reid and Blagojevich apparently took place before the scandal broke, so let's concern ourselves with that hypothetical. Was Jackson electable then?
In the literal sense of the term "electable", of course Jackson Jr. was electable. Before the Blagojevich scandal, virtually any Illinois Democrat was going to be the favorite over virtually any Illinois Republican. One only need back to look to 2006 when Blagojevich himself, already relatively unpopular in Illinois, defeated a fairly appealing, moderate Republican in Judy Barr Topinka by 10.5 points. Having the big 'D' by your name is exceptionally advantageous in Illinois -- or at least it once was.
Nevertheless, I don't think that Reid was wrong to conclude that Jackson Jr. was relatively more vulnerable to an upset than another Democrat might have been.
On December 4th, about a week before the Blago scandal broke, Rasmussen released a poll asking Illinoisans who they preferred to succeed Barack Obama. Jackson Jr. was named by 23 percent of Illinoisans, essentially putting him in a three-way tie with Lisa Madigan (25%) and Tammy Duckworth (21%).
A look at the internals of the poll, however, suggests that Jackson's support was fairly limited outside of his base.
Candidate preference by party:
Candidate DEM Indie GOPNearly all of Jackson's support came from Democrats, among whom he was the plurality favorite to succeed Barack Obama. He placed a fair bit behind Madigan and Duckworth among independents, and received very little support among Republicans.
Jackson, Jr. 36% 14% 9%
Duckworth 29% 19% 12%
Jones 2% 3% 6%
Madigan 17% 23% 37%
Schakowsky 8% 9% 5%
Unsurprisingly, these results are strongly tied to the issue of race:
Candidate preference by racial group:
Candidate White Black OtherJackson had the support of 81 percent of black voters in the Rasmussen poll, but just 10 percent of whites. He did do reasonably well among those in the "other" category -- which in Illinois, means mostly Hispanics -- getting 21 percent support, though he still trailed Duckworth among that group.
Jackson, Jr. 10% 81% 21%
Duckworth 22% 6% 31%
Jones 2% 4% 6%
Madigan 31% 0% 23%
Schakowsky 9% 2% 5%
Now, it is hard to translate the results from a straw poll like this into a prospective matchup against a Republican opponent. But a reasonable worry for Reid is that, while African-American voters would probably have supported another Democrat in a matchup against a Republican, white voters who might have gone for someone like Madigan might not have gravitated to Jackson.
In the 2006 gubernatorial race, Illinois' turnout was made up of 77 percent white voters, 10 percent black voters, and 13 percent "other". Let's say that Jackson Jr. received a turnout bonus among black voters, boosting their share of the electorate to 12 percent, bringing white voters to 75 and leaving "other" at 13. Let's furthermore say that Jackson Jr. wins 95 percent of the black vote -- a Barack Obama type of number -- and 60 percent of the "other" vote. These Jackson votes account for a total of 19.2 percent of Illinois' electorate.
In order to receive a majority, Jackson Jr. would then have to win the support of just slightly over 41 percent of white voters. In Illinois, about 35 percent of white voters are Republicans, 35 percent are Democrats, and 30 percent are independent. What if, say, Jackson received the support of 80 percent of white Democrats, but just 35 percent of white independents and 5 percent of white Republicans? That would bring him to 49.4 percent, denying him election by a point or so.
Hypothetical 2010 Election:
___ Share ofNow, obviously these numbers are completely made up. Perhaps Jackson Jr. would get more like 70 percent of Hispanic voters instead of 60 percent, or more like 85 percent of white Democrats instead of 80 percent. All that I'm saying is that given Jackson's tepid support outside of his base, there is a plausible path to defeat here, one that might not have existed for someone like Madigan.
Group Electorate Jackson Jr. GOP
African-American 12.0% 95% 5%
Hispanic/Asian/Other 13.0% 60% 40%
White Democrats 26.25% 80% 20%
White Independents 22.5% 35% 65%
White Republicans 26.25% 5% 95%
Total 100% 49.4% 50.6%
I do share rikyrah's concern over at Jack & Jill Politics. If Reid was looking for someone electable -- should he really have been looking at Tammy Duckworth? The fact of the matter is that Illinoisans have gotten to see an awful lot of Tammy Duckworth, and they simply don't like her all that much -- note that she's getting barely more crossover support than Jackson in the Rasmussen poll. Duckworth also couldn't defeat a non-incumbent Republican in Illinois' 6th Congressional District in 2006. Although IL-6 is a slightly Republican district, registering as an R+3 on Charlie Cook's PVI scale, 2006 was a very, very Democratic year. Democrats were knocking off Republican incumbents in R+3 districts all over the country in 2006, and they certainly should have been favored in an open seat race. I'm a pretty big proponent of the No Loser Rule: don't nominate someone for higher office if they lost their last race for lower office.
In all probability, though, this seat would be considerably more vulnerable to Republican takeover if Jackson were the nominee than if Madigan were instead, or for that matter someone like state treasurer Alexi Giannoulias.
If Harry Reid hadn't expressed that concern to Blagojevich, then Harry Reid really wouldn't have been doing his job.
NOTE: To be clear, my argument is about Jackson Jr. and Jackson Jr. only, who along with Madigan and Duckworth, has strong enough statewide name recognition that we can credibly discuss their chances of winning election. I don't particularly know about Davis, or for that matter someone like Jan Schakowsky, who are little known outside of their home districts. In particular, the implication that Jackson is more likely to lose than Madigan seems credible. On the other hand, the implication that, say, Davis is more likely to lose than Tammy Duckworth is far more speculative.
UPDATE (9:48 AM): The state will now begin counting the ballots; see The Uptake for live video coverage. The Supreme Court has not yet ruled on Coleman's petition, nor was the recount team in St. Paul willing to delay the counting until it heard from the Court.
At 9 AM local time, Minnesota officials will begin counting more than 900 absentee ballots mutually agreed upon by the campaigns to have been wrongfully rejected -- unless they don't.
If it proceeds unimpeded, the counting of absentee ballots is likely to bolster Franken's lead, as proportionately more rejected absentees were identified in counties won by Franken. If we simply allocate out the absentees in each county based on the proportion of the November 4th vote (.pdf) received by each candidate, that would imply 414 ballots for Franken, 383 for Coleman, and 156 for "other", adding 31 votes to Franken's lead.
The apparent edge for Franken comes as each campaign has had essentially a unilateral veto to prevent any particular absentee ballot from being opened and counted. Initially, based on a review of the process in Democratic stronghold St. Louis county, it appeared that the Coleman campaign was being far more aggressive than the Franken campaign in exercising its veto. Information gathered by additional counties by the Star Tribune, however, suggests that this may not be the case, and that the Franken campaign has been at least as aggressive as Coleman in exercising its veto.
The Star Tribune has reported on the disposition of absentee ballots in six counties, including the "Big 3" blue counties (Hennepin, Ramsey, St. Louis) won by substantial margins by Franken on election day, as well as three smaller counties won by Coleman.
In the Big 3 counties, Coleman vetoed about 18 percent of absentee ballots, Franken 11 percent, and 2 percent were vetoed by county officials, leaving slightly less than 70 percent of the ballots to be opened and counted.
Interestingly, however, in both Ramsey and Hennepin Counties, Franken actually vetoed more ballots than Coleman. There are some number of red precincts in each of these counties, and so it is possible that the Franken vetoes came in those areas. It is also possible, however, that the Franken campaign has better information than the Coleman campaign. Although the absentee ballots are sealed, the name of the voter in question can be identified, and a campaign that had superior voter lists could in fact do some very precise cherry-picking.
In the three smaller red counties that the Star Tribune identified, Franken vetoed 28 percent of the ballots, and county officials and the Coleman campaign almost none. The overall fraction of the ballots forwarded to the state from these counties was 68 percent.
To be clear, both campaigns seem inclined to employ the veto power provided to them by the state to their utmost advantage. If, however, Coleman is engaging in macro-level cherry picking (moving to reject ballots based on the characteristics of the county), and Franken is engaging in micro-level cherry picking (moving to reject ballots based on the characteristics of the voter as provided for by his voter databases), then Coleman may be at a substantial disadvantage, and Franken is likely to gain more ground from the counting of the absentees than the 31 votes we implied above.
The contingency is that the Coleman campaign is once again back in court, having filed an motion for emergency order (.pdf) with the state Supreme Court on Wednesday. The motion ostensibly seeks a uniform standard for the counting of absentee ballots -- something which, by all available evidence, the process that the court initially established for the counting of absentees, in giving each campaign an essentially arbitrary and unilateral veto, did a poor job of ensuring.
Coleman's motion is fairly sneaky, however, because the relief he is specifically requesting is his motion is not to blow the whole thing up and start the absentee ballot process again over, but rather, for the inclusion of about 650 absentee ballots, mostly from heavily red counties, that have already been identified by his campaign as being wrongfully rejected, but which were not identified as such by the respective counties. The Franken campaign, for its part, identified 80-90 such ballots.
Coleman is trying to thread the needle here. On the one hand, he knows that if the state counts the absentee ballots as is, they are only likely to add to Franken's margin. On the other hand, if the state started the process completely over, Franken might conceivably also identify hundreds more absentee ballots that he believed had been ignored by the county officials. Basically, Coleman wants the state to permit his 650 ballots to be counted -- as well as Franken's 90 -- and then to freeze things in place.
Any of a variety of rulings from the court are possible; we may know the outcome within the hour.
Colorado is one of four states that will require senators to be appointed as a result of Barack Obama's transition the White House. Remarkably, it now appears possible that none of the four appointees will be present holders of elected office. Indeed three of the four have never before run for elected office. This includes Bennet, who worked for an investment firm prior to becoming superintendent, and Delaware's Ted Kaufman, a Beltway political operative who was formerly Joe Biden's chief of staff. Caroline Kennedy, if she is named to Hillary Clinton's seat in New York, has also never run for office. Only Roland Burris in Illinois, if the Democrats choose to seat him, would break the rule, having been his state's Attorney General until 1995.
In contrast to certain of the other selections, however, this one would appear to be eminently meritorious, as Ritter had a rich group of candidates to pick from, and as Bennet's work in Denver was regarded strongly enough that he was reportedly a finalist to become Obama's Secretary of Education. Relatively little is known about Bennet's politics, however. If he fits the profile of a typical Colorado Democrat, he'll be liberal on social issues and the environment, but more moderate on fiscal policy (as his business background might imply).
Salazar's seat was to be up for re-election in 2010, and so Bennet -- if he so desires -- would soon have the opportunity to compete for a full six-year term. I would be modestly surprised if Bennet is merely intending to serve as a placeholder, as at age 44, he is on track to become the youngest member of the United States Senate.
But the issue puts Specter in a particularly tough position that is a typical quandary for Republican moderates. Facing reelection in 2010, he hails from a state where unions are strong and the electorate is becoming more and more Democratic. That puts pressure on him to support the labor bill.The labor bill in question is the Employee Free Choice Act, a bill on which Specter's vote is absolutely crucial to the Democrats. Specter voted for cloture when EFCA came up in 2007 -- he was the only Republican to do so -- and has long had the backing of labor unions in Pennsylvania, most of whom endorsed him against Democrat Joe Hoeffel in his successful re-election bid in 2004.
But Specter often faces opposition from fellow Republicans for being too liberal: In 2004, he faced a tough primary challenge from the right by Pat Toomey, who is now president of the Club for Growth, an anti-tax conservative group.
Toomey says that if Specter casts a decisive vote on the labor bill, "he virtually assures he will deal with a primary challenge and he hands the challenger a powerful issue."
But Pat Toomey, the conservative Republican who came closer to knocking off Specter in 2004 than Hoeffel did (losing by just 1.7 percentage points in the Republican primary) seems to be suggesting that he'll run against Specter if Specter votes for EFCA. Is Toomey -- or another conservative Republican -- a credible threat to Specter?
On the one hand, conservative Republicans tend to be out of vogue these days, especially in a state like Pennsylvania, who couldn't kick Rick Santorum out of the Senate fast enough in 2006. But the preferences of Pennsylvania's electorate as a whole hardly matter. Pennsylvania is a closed primary state, and so only Republicans would vote in the event of a primary challenge. With many of Pennsylvania's moderates having registered with the Democratic Party in order to vote in this year's Democratic primaries, Specter might not be able to count on much crossover support in the primary, especially with the Democrats liable to have a very interesting primary of their own taking place at the same time.
Still, Specter wouldn't seem to be in too bad of shape among his base. Quinnipiac has his favorability ratings among Republicans as 60 percent favorable, 21 perecnt unfavorable. Specter's ratings were notably poorer in 2004, when as of April of that year, Quinnipiac had measured his numbers as 52 percent approve, 31 disapprove among Republicans.
Toomey is now President of the Club for Growth, which came to his aid in 2004 but has a somewhat spotty track record of late, having lost 3 of the 4 Senate races where they backed a candidate in November. It's hard to know whether an organization that brands itself as the Club for Growth tends to do will be seen as a part of the problem or a part of the solution if the economy remains sluggish two years from now.
For the time being, however, Specter would seem to be at greater risk of losing in the general than in the primary. If he thinks he can guarantee himself labor's backing in the general in 2010, odds are that he'll call Toomey's bluff.
Firstly, some smart folks arguing that the Senate probably does have the right to exclude Burris:
Akhil Reed Amar and Josh Chafetz, Slate
Lyle Dennison, SCOTUSBlog
Jack Balkin, Balkinization
And here are some other smart folks arguing that no, the Senate probably does not have such authority:
Scott Lemieux, Lawyers, Guns and Money
Brian Kalt, Concurring Opinions
Eugene Volokh, Volkoh Conspiracy
The crux of the argument seems not to be, as I questioned originally, whether Burris' appointment constitutes an "election" as specified by Article 1, Section 5 of the Constitution. The Senate certainly has had no trouble challenging appointments before, although it hasn't done so (at least as far not as I can tell) since the Powell v McCormack decision in 1969. (Amar and Chafetz also argue that -- notwithstanding the question about what constitutes an "election", the appointment of Burris qualifies as a "return", which the Senate also has the power to judge under Article 1, Section 5). Rather the question in light of the Powell decision, is to what if any extent the Senate is restricted in its power to serve as the judge of such an appointment.
I do think that -- and, in case this isn't clear to anyone, this is just a layman's reading of the decision -- people may be underestimating the intended scope of Powell, which seems to have been trying to cast a fairly wide net. In particular, the opinion holds that:
Unquestionably, Congress has an interest in preserving its institutional integrity, but, in most cases, that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.Emphasis mine. The key word in that paragraph is probably "discretionary". One can imagine two extremes here. In one case, imagine that the governor of Arizona, a state which requires that an appointed senator be from the same party as the vacating one, attempted to nominate a candidate from the other party instead, in apparent contravention to the state law. Or, to draw a more plausible scenario, suppose that the appointee switched parties on the day before her appointment to circumvent that law. Clearly, it seems, the Senate would have the authority to strike this down.
At the other extreme, imagine that in Indiana, which has no such law, Evan Bayh decided to resign from the Senate, Governor Mitch Daniels decided to appoint a Republican to fill his seat, and that the Democratic majority in the Senate didn't like this and so voted to exclude Daniels' otherwise-qualified appointee merely because they didn't want another Republican in their chamber. I would hope that the Senate would be precluded from doing something like that.
What the Powell decision seems to hold is that, if the Senate wants to exercise its discretionary power to prevent someone from serving in the Senate, it has another mechanism to do that, which is expulsion. So the decision to exclude a member must in some sense be non-discretionary.
In the case of a question about a member's qualifications to serve in the Senate, there is a pretty clear bright line between a discretionary decision and a non-discretionary one, which is that the Constitution specifically establishes the qualifications for serving in the Senate, such as being of sufficient age and being a U.S. Citizen. But can such a bright line be established between a discretionary and non-discretionary action in the case of the Senate's right to judge a gubernatorial appointment?
I don't know. What the Burris folks will probably argue, if the case gets that far, is that the Senate's power would be limited to judging whether such an appointment was made in contravention of either state or federal laws. That is, a non-discretionary judgment is one involving the enforcement or interpretation of such laws, and in order to be allowed to render such a judgment, the Senate needs to put a legal question before itself.
That the Burris appointment appears to be legal under Illinois law, that the state has alternate mechanisms to preclude Blagojevich from making such an appointment (either removing him from office or requiring that the vacancy be filled by special election), and that neither Blagojevich nor Burris have yet been convicted of any wrongdoing, might tend tip the scales in favor of this being precisely the kind of discretionary decision that the Court was seeking to prevent in Powell.
If, on the other hand, Blagojevich were impeached before Burris had been sworn into the Senate, perhaps the Senate might then have the right to judge whether Burris' appointment had been nullified by that impeachment, and to exclude him if it so chose. Perhaps the Senate also has the right to judge whether Blagojevich's appointment is invalidated by the failure of Illinois' Secretary of State to certify it. These are fairly specific legal questions.
Nor am I suggesting that the Senate has no right to judge the Burris appointment on its face. But the "non-discretionary" component of that might be to judge whether the appointment was legal or not -- not merely to judge whether it was in poor taste.
At the very least, the people arguing for a narrower interpretation of Powell would seem to have to reconcile the way in which the Court distinguished exclusion from expulsion in that opinion. Amar and Chafetz argue that the distinction is merely that exclusion concerns a potential member who has not yet been seated, whereas expulsion concerns someone who already sits in the chamber. That is a perfectly commonsensical interpretation -- but it is not the one that the Court appears to have made in Powell.
We'll call this version 'Version A'...
Notes: the "vote" provided in the example is entirely hypothetical.
The senior senator from each state is always designated on the left-hand side or the top-hand side of each dyad, whichever is applicable.
A couple of alternate versions follow below the jump.
...and Version D:
Note that the frequency of dining out is essentially unchanged among American households making more than $75,000 per year, as well as those making less than $20,000 per year. Americans in the middle income brackets, however, appear to be dining out 15-20 percent less frequently.
Caveats: the sample size on this survey is relatively small (about 1,000 persons) and restaurant meals are obviously just category from among a large universe of consumer expenditures. Still, if one of the goals of the stimulus is to craft tax policy so as to entice consumption, it is important to know just who needs to be stimulated.
Reid spokesman Jim Manley, by way of Ben Smith, has word on the Majority Leader's potential workaround:
In response to those who are asking how this is different from Powell v. McCormack, in which supreme court said House could not refuse to seat a member based on his alleged corruption and said only qualifications to be considered are those listed in the Constitution:This is certainly a stronger argument than trying to challenge Burris's qualifications, something which was explicitly addressed by McCormack.
[W]e are not making a judgment about qualifications of appointee, but about whether appointment itself is tainted by fraud, which we believe we are entitled to do under Art. 1 s. 5.
This is like judging the integrity of an election, free from fraud or corruption. It's the process that led to the [appointment], not the appointee's fitness.
Article 1, Section 5 of the Constitution holds that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members". If Reid is not attempting to judge Burris' qualifications, then he'd presumably have to argue that a Senatorial appointment is tantamount to an "election", which seems on the surface like a liberal reading of that term. EDIT: Some of the lawyers in the comments section, however, seem to think that this is a trivial distinction, and cite previous instances (.PDF) in which the Senate did attempt to challenge an appointment.
Nevertheless, if you read the McCormack opinion, the principal reason why the Court decided to interpret the qualifications clause narrowly is because there is an alternate mechanism available to the Senate: expulsion. The Court conceivably might hold that the other provisions of Art. 1 s. 5 should be interpreted narrowly for the same reason.
We should keep in mind, however, that ultimately winning this court case doesn't necessarily do a whole lot of good for Reid. All that would mean is that the Democrats would be short a senator until Illinois either held a special election or impeached Blagojevich, neither of which appear likely to happen especially quickly. Rather, the goal is to find some pretense by which the Democrats can keep Blagojevich at arm's-length -- and forcing Burris to go to court to get his seat would presumably allow them to do that.
NOTE: Edited for truthiness.
DULUTH - Shirley Graham was astonished to learn that a lawyer from Norm Coleman's campaign on Tuesday blocked her absentee ballot from being added to the U.S. Senate recount.There are a couple of things in the preceding paragraphs that the Franken campaign ought to be worried about. Firstly, quite a high percentage of absentee ballots were rejected -- 60 out of what had been reported yesterday to be 161 ballots under consideration in St. Louis County, or 37 percent. All but one of those objections were made by the Coleman campaign. Secondly, the Coleman campaign is getting away with blocking ballots for asinine reasons. In the case cited above, for instance, the ballot was rejected because the date provided by the voucher did not match the date the date provided by the voter. Not only is there no requirement that the dates of the signatures match -- there is no requirement that the signatures are dated, period (see the applicable statutes for yourself here and here).
"I'm an election judge," said Graham, of Duluth. "I expected to be the last person whose ballot wouldn't be counted."
Her sealed ballot was among 60 from St. Louis County that were blocked by representatives of Coleman and Al Franken during the first day of a statewide review of absentee ballots that may have been wrongly rejected in last month's election. Under a state Supreme Court ruling, local election officials and the two campaigns must all agree that a ballot was wrongly rejected for it to be sent along to St. Paul for inclusion in the recount.
Coleman's camp, which rejected 59 of the 60 ballots set aside Tuesday in St. Louis County, objected to Graham's ballot on the grounds that the date next to her signature did not match the date next to the signature of her witness, Jack Armstrong.
Now, it's not clear that the Franken campaign can do much about the Coleman campaign blocking any one individual ballot, since the process that the Minnesota Supreme Court set up essentially gives either campaign a unilateral veto on any ballot they do not want counted. The risk to Franken is that the Coleman folks will be applying one standard in St. Louis County, where the average absentee ballot would probably help Franken, but another (more liberal) one in Dakota County, where Coleman won the plurality of votes. If Coleman is blocking 37 percent of the ballots in blue counties and not blocking any at all in red counties, then it is far from clear that Franken will succeed in gaining ground from the absentee ballot phase and in fact the opposite might turn out be true.
The Franken could take one obvious counter-measure: move to reject a high percentage of absentees in red counties. Perhaps they have been doing that; reporting has pretty sporadic between all the different counties where this process is taking place, so we really don't know.
For the time being, however, they seem inclined to play it cool and maintain the moral highground, perhaps believing that they'll have a strong argument on Equal Protection grounds if they need to contest the election later on.
From my vantage point, Franken could possibly have played his hand more strongly on Monday, once it became clear that the Coleman campaign was making no pretense whatsoever of attempting to establish an objective, statewide standard for the counting of absentees, essentially just cherry-picking ballots and daring the Franken campaign to call them on it. The result of that process was that no statewide standards were agreed upon, enabling either campaign to apply different standards across different counties.
The upshot of all of this is that Franken probably now has grounds to contest the election if at any point he falls behind, either after the vote is certified or, as is somewhat more likely, following a successful Coleman challenge on the question of duplicate ballots.
The notion that the Democrats can refuse to seat Roland Burris out of hand is, at best, constitutionally dodgy. This is because of the Supreme Court's 1967 Powell v McCormack decision, in which it ruled that the Congress's power to judge the qualifications of its members is expressly limited to the conditions mentioned in the Constitution (e.g. age, residency, and U.S. Citizenship). If the Congress wants to deny membership for any other reason, it has another power, which is expulsion. Although the power of expulsion is much broader than the power of exclusion, it comes with a higher price tag: two-thirds of the Senate must vote to expel one of its members rather than a simple majority.
Given this, Reid and the Democrats have essentially three strategies they could pursue if and when Burris's name comes before the Senate Chamber:
1) Attempt to exclude Burris by majority vote, almost certainly inviting a court challenge.
2) Attempt to expel Burris after seating him.
3) Bluff at either of the above, but with the ultimate expectation that Burris will be seated.
1) Attempt to exclude Burris by majority vote, almost certainly inviting a court challenge.
Reid's language about refusing to seat Burris seems to be an invocation of Article 1, Section 5 of the Constitution, which holds that "Each House shall be the judge of the elections, returns and qualifications of its own members." In the case of Burris, however, there was no election in play (rather, he was appointed), so there are no questions about elections or returns - and McCormack holds that the Congress's ability to judge the qualifications of its members is limited to circumstances that don't pertain in the case of Burris.
Still, the Senate could hold a vote and decline to seat Burris, and take their chances in court. Then, Burris (or Blagojevich?) would sue, probably also seeking an injunction that required the Senate to seat Burris until a ruling by th court.
Reid would seem to be a longshot to win such a lawsuit, since McCormack speaks fairly explicitly to the issue at hand, but it's possible that he could find some sort of clever argument or that the Court would refuse to take the case -- it's a different court than it was in 1967. Or Burris, embarrassed by the whole thing, could stand down, although that seems unlikely since Burris has lost more elections than Lyndon LaRouche and doesn't seem the type to be easily deterred.
More likely, though, this would succeed only in delaying the inevitable for several weeks.
2) Attempt to expel Burris after seating him.
Here, the Senate would be on much firmer Constitutional ground. But the power of expulsion has been used very judiciously -- no Senator has been expelled since the Civil War, although several (such as Bob Packwood) have resigned in the face of possible expulsion. And Burris himself has not been accused of any misconduct; the Senate has never before attempted to expel a member under such circumstances. Achieving a two-thirds majority, therefore, might not be easy. There is also a decent chance that an expulsion could trigger a court challenge, although the courts have interpreted the Senate's powers of expulsion to be very broad.
3) Bluff at either of the above, but with the ultimate expectation that Burris will be seated.
The difference here is that Reid would make a show of trying to exclude Burris for the cameras, but would not really try and whip votes. Perhaps the Senate Democrats could thereafter vote to exclude Burris from their caucus, something they have complete discretion over, but which wouldn't have much impact with the Democrats firmly in control of the floor.
Of these choices, it seems like the first is probably the Democrats' best bet. This way, Reid and the Senate Democrats won't appear to have broken their promise to exclude Burris; instead they'll claim that their hands have been tied by the courts. But, they'll still get their 58th (or 59th) Democratic senator.
Secondly, although Burris has criticized Blagojevich in recent weeks, he's also contributed $11K to his campaign fund, and his consulting firm has done a lot of business with the state during Blago's term. Neither of those things are damning in and of themselves, of course, but they give the Republicans some ammunition.
One of Reid's problems, by the way, is that it seems plausible that some Republicans would vote against expulsion, perhaps by suggesting that to expel Burris would be an abuse of their Constitutional authority. Their real motivation, of course, might be to give the Blagojevich story legs heading into 2010.
12:58 PM: What's more shocking? That a fairly credible candidate actually decided to accept Rod Blagojevich's appointment? Or that Harry Reid is actually showing some spine?
But, says Ben Smith:
Gov. Rod R. Blagojevich of Illinois will name Roland Burris, a former state attorney general, to replace President-elect Barack Obama in the United States Senate, someone with knowledge of the governor’s plans confirmed on Tuesday.
Mr. Blagojevich, who faces federal corruption charges including allegations that he tried to sell Mr. Obama’s former senate seat for a high-paying job or money, had not been expected to try to fill the seat. [...]
Mr. Burris, 71 and a Democrat, is a longtime political player in this state, who has run for governor before, including mounting a primary challenge against Mr. Blagojevich. Mr. Obama backed him over Mr. Blagojevich in that race.
This is going to be ... awkward. As we explained before, it's not at all clear that the Senate has the constitutional authority to refuse to seat an appointed senator. Instead, they might have to seat Burris and then immediately expel him. And I'm not sure that expulsion, which requires a two-thirds majority, is any kind of slam dunk. Burris has a reputation for being above-board, was the first African-American ever to be elected (to statewide office) in Illinois, and actually ran against Blagojevich in 2002. He also has the advantage of not actually having held office in Illinois since 1995, which may explain why he's clean. So the third surprise here is that Blago made a fairly astute choice. If he wanted to pick someone who maximized his chances of having the appointment succeed, Burris would be close to the top of that list.
The Senate will not seat Roland Burris if Illinois Governor Rod Blagojevich attempts to appoint him, a Democratic leadership aide said.
Majority Leader Harry Reid views Burris as "unacceptable," the aide said.
The Senate Democrats may have let this situation get away from them when they got greedy and pulled back from the promise of a special election.