Is Coleman's Goal a Do-Over?

Close only counts in horseshoes and hand grenades. And maybe, Norm Coleman is hoping, elections in Minnesota.

Call it a hunch, but a couple of recent articles suggest that Norm Coleman's goal might not be to pull ahead of Al Franken outright, but rather to create enough confusion and uncertainty around the outcome of the recount that the Senate calls for a re-vote in Minnesota, as it did in the New Hampshire Senate Race of 1974.

Firstly, take this Wall Street Journal article from Michael Stokes Paulson, a law professor at the University of St. Thomas:

And what if there is no reliable way to determine in a recount who won, consistent with Bush v. Gore's requirements?

The Constitution's answer is a do-over. The 17th Amendment provides: "When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."

In a sense, a vacancy has already "happened." The U.S. Senate convened on Jan. 6 with only one senator from Minnesota. Still, the seat is perhaps not "vacant," just unfilled. But if the contest proceeding does not produce a clear winner that passes constitutional muster, a special election -- and a temporary appointment by Gov. Tim Pawlenty -- may be the only answer.

Mr. Paulson's argumentation is poor. That the Constitution provides a theoretical mechanism for a do-over, one which the Senate exercised in 1974, does not mean that it compels or recommends one. And there is certainly no sense in the Constitution that the Senate is supposed to say "Ehh... it's pretty close -- let's have a do-over!". In New Hampshire in 1974, the outcome was genuinely in doubt, with one recount having certified the Democrat ahead by ten votes, and a second recount the Republican ahead by two votes.

Nevertheless, the fact that this piece appeared in the Journal, which just last week had published an inflammatory editorial which misstated several basic facts about the recount process, suggests that these are the preferred talking points of the Coleman campaign -- talking points which evidently involve planting the seed of a re-vote in the public's head.

Likewise, Marc Ambinder's piece in the Atlantic today invokes the possibility of a re-vote:

Where it becomes difficult for judges is in trying to reconciling disparate totals - how do they fix it? Do they add votes? Take them away? The judges will probably avoid this particular route. If you get into this margin where judges have to take away or add votes - artificializing the vote count in the mind of the public - then the clamor for a whole new election will increase. Actually, if Coleman begins to make up the 225 difference, Democrats might be the ones calling for a new election.

If you read the rest of Marc's piece, it's clear that it has been informed by discussions with the Coleman campaign; he's basically reporting the Coleman campaign's spin on the process. Which is fine -- Ambinder is one of the few reporters out there who actually does a lot of reporting, and reporting someone else's spin, as Ambinder does, is very different from spinning yourself. (I do think that Ambinder takes a number of the Coleman campaign's arguments too credulously.) But the pattern is the same: an article that presents the Coleman campaign's version of events again concludes by dangling the possibility of a re-vote.

I'd expect to hear more noises about a re-vote in the coming days. I'd also expect the Coleman campaign, in general, to try and create a fog of doubt around the recount process.