Voters have last word in U.S. Senate race? Maybe not
ST. PAUL — One Senate candidate says the voters have spoken. The other says the electorate still needs to be heard.
In the end, election experts say, it could be the courts or even the Senate that speaks the loudest on Minnesota’s unsettled Senate race.
While the race is headed for an automatic recount, Republican Sen. Norm Coleman and Democratic challenger Al Franken have other options to alter the outcome.
The recount is due to start once results are made official Nov. 18, and it could take weeks. Coleman clung to a slim lead Thursday as election officials around the state double-checked reports. At one point his edge dipped as low as 236 votes, out of nearly 2.9 million votes cast.
After a recount, the candidates or any eligible voter can head to court to challenge the way the election was conducted or the votes were tallied. The Minnesota law spelling out the contest raises the possibility of Senate involvement.
"I don’t think there is any possibility it will be simply a recount," said Hamline University law professor Joseph Daly. "It is destined for the courthouse and ultimately it is destined for the United States Senate based on this law. There’s too much at stake. There’s too much vitriol."
Minnesota’s race is one of three up in the air nationwide. Races in Georgia and Alaska are also unresolved. All three involve Republican incumbents in a year that has seen Democrats gain six seats in the Senate already: Colorado, New Hampshire, New Mexico, North Carolina, Oregon and Virginia.
Franken went on Minnesota Public Radio to explain why he won’t waive the recount, as Coleman said he would do if he was in the same position.
"This is the closest race in Minnesota history, the closest Senate race and the closest race anywhere in the country. This is just part of the process to make sure every vote is counted," Franken said, adding, "Candidates don’t get to decide when an election’s over — voters do."
Coleman laid low Thursday.
In percentage terms, Minnesota’s race will go down as the closest Senate election ever prior to a recount. In 1974, a New Hampshire race came down to 355 votes out of 200,000 cast.
The loser in that race, the Democratic candidate, overtook the Election Day victor by 10 votes in a recount. But more maneuvering and court challenges overturned that result and the state’s Republican governor awarded the election certificate to his party’s nominee.
The case ultimately wound up before the Senate, where Democrats held a large majority. But a standoff dragged on until August when the Senate voted to declare the seat open. A special election was held the next month, and record-breaking turnout helped Democrat John Durkin prevail.
"It does go to some indication of how far the Senate was willing to go," said Associate Senate Historian Don Ritchie.
The Minnesota election law envisions Senate involvement.
Once a result is contested in district court — which must come within a week of the post-recount canvass — the chief justice of the Supreme Court assigns three judges to hear it. The current chief, Eric Magnuson, is an appointee of Republican Gov. Tim Pawlenty.
Either party in the case can request to inspect the ballots, and three-member inspection teams are appointed. Each party picks one, and the third is chosen by the two or appointed by a judge.
Within 20 days of the initial filing, a trial is held. The court decides who received the most votes and is entitled to the certificate of election. The court can study evidence of election irregularities, but it can’t issue findings or conclusions.
Once all appeals are exhausted, either party can ask that the information be forwarded to the presiding Senate officer.
From there, it’s up to the Senate to decide how to proceed.
"Ultimately the Constitution gives the Senate the sole power to determine the qualifications of its members," Ritchie said. "In the end, there is no appeal if the Senate makes the decision."
Neither campaign made legal advisers available for interviews Thursday.
Ohio State University law professor Edward Foley, who is writing a book on disputed elections, said it’s up to the candidates to decide how far to push things.
"I’m not saying either side has to concede or give up," Foley said. "But what bipartisanship going forward with the recount would mean is that there is a shared understanding of the ground rules in conducting the recount and abiding by that process."
"Somebody is going to lose," he said, "but what’s important is the way in which you reach that conclusion."