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Legal Battle Continues Over Minnesota Senate Race

March 11, 2009 at 6:40 PM EDT
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More than 4 months after the election, the Minnesota Senate race between Republican Norm Colman and Democrat Al Franken is still undecided, despite a lengthy recount and trial. Two journalists discuss the race's details and whether a decision may be forthcoming.

GWEN IFILL: One hundred and twenty-seven days after the people of Minnesota cast their votes for U.S. Senate, the seat remains empty. Republican Norm Coleman and his Democratic opponent, former comedian Al Franken, each insists he is the winner. After a lengthy recount and a seven-week trial, neither side appears ready to yield.

Why is it taking so long? And what does it mean for the Senate? For that, we’re joined by Amy Walter, editor-in-chief of the Hotline, National Journal’s political daily, and veteran Minnesota political writer Eric Black, who blogs for

Welcome to you both.

AMY WALTER, editor-in-chief, The Hotline: Thank you.

GWEN IFILL: Eric Black, what is happening? What’s taking so long?

ERIC BLACK, Well, we have a process laid out in Minnesota law that has many steps in it. We’re going through those steps. The trial, which is coming to a close now, probably will end next week, is what we call the election contest, comes after the recount. And as long as it’s close enough to argue about, they’re still arguing.

GWEN IFILL: You say close enough. How many votes are we talking about that separate these two candidates after all this time?

ERIC BLACK: Well, at the end of the recount phase, Al Franken had a lead of 225 votes. During this long trial, he appears to have gained some ground, probably added to his lead, but that’s sort of an unofficial tally based on votes that the judges seem ready to count.

GWEN IFILL: So that…

ERIC BLACK: I think the current estimate is that he probably has a lead of about 300 going into the last big phase, when the judges will decide how many more ballots they’ll look at and count.

GWEN IFILL: So that’s what the trial is about, which ballots they’re willing to count?

ERIC BLACK: Yes. Most of the trial has revolved around the issue of absentee ballots. Quite a few absentee ballots were rejected on Election Day because of perceived flaws in the voters’ applications for their absentee ballots. And most of the argument is about, which of those ballots actually should be opened and counted?

Good prospects for Franken

GWEN IFILL: Now, Al Franken was here in Washington yesterday meeting with senators on the Hill. And one of the things he said at some point in some meeting with some senators was that he sees a light at the end of the tunnel. Do you know what he was talking about?

ERIC BLACK: Well, I think people who are watching the trial closely feel that Franken is in a very good position to end up getting what this -- what this trial is all about is the issuance of a state election certificate. The holdup in the U.S. Senate has been that the Senate has been unwilling to consider seating Franken, even though he appears to be ahead, until he gets a certificate.

And I think people who've been watching the trial closely think that things line up very favorably for Franken to get a certificate, maybe not when this trial ends, but when the verdict from this trial is appealed to the State Supreme Court.

GWEN IFILL: Well, presumably, Eric, Norm Coleman, the former senator, actually believes that he has some possibilities, as well. He's been watching this closely. And one of his staffers I think said that light at the end of the tunnel is an oncoming train for Al Franken. Why is he still hanging on?

ERIC BLACK: Well, you have to assume that he does think there's a possibility that he can still win. Certainly, there's grumbling from Democrats that the Republicans are really just running out the clock to see how long they can keep the seat vacant to keep the Democrats from getting their 59th vote.

But I know of no evidence to show that the Coleman side actually is convinced they're going to lose. They surely know that a lot of rulings have gone against them recently, but, you know, it ain't over until it's over.

GWEN IFILL: And they could continue to appeal this and appeal this if they want to. It doesn't necessarily end with this court ruling.

ERIC BLACK: Well, when this special election contest panel of judges rules, that can be appealed to the State Supreme Court. They would probably deal with it fairly quickly. At that point, it looks like the certificate would be issued and the winner would be -- would probably be seated.

You can appeal that to the U.S. Supreme Court, but it's up to them whether to take it, and there's some thought that Coleman might try to start a whole new case in federal court. But the best thinking right now is that neither of those steps would prevent at least the provisional seating of whoever was ahead at that time.

Democrats in the Senate

GWEN IFILL: OK, Amy. Here we are in Washington, 58 senators, 59 senators...

AMY WALTER, editor-in-chief, The Hotline: Fifty-eight Democrats.

GWEN IFILL: ... 58 Democrats.

AMY WALTER: Right, there you go.

GWEN IFILL: What are the national parties saying about this standoff?

AMY WALTER: Well, it's funny. They're not saying a whole lot, at least at this point, and I think for the points that Eric made earlier, which is, you know, this was a very heated contest. I mean, these two opponents -- and there was actually a third candidate in this race, which is part of the reason the thing was so close. And it was a very ugly contest.

And the thought was that it might spill into, then, the seating for Al Franken. But I think what we're hearing right now is that, you know, Democrats feel confident that they're going to get this in the end.

Harry Reid, the Senate majority leader, saying he expects -- you know, I'm not a gambling man, he said, but there's a 90 percent chance it's going to be 30 to 50 days that we seat him.

GWEN IFILL: The senator from Nevada is not a gambling man?

AMY WALTER: That's right. No, he is not, and so saying that he feels good about that. And the bottom line is, they do have 58 seats. Do they want to turn the Senate into a knock-down, drag-down fight over one more seat?

And the fact is, they would love to have -- Democrats would love to have that extra cushion, but they've been able to pass everything they've wanted to pass thus far by getting -- keeping almost all of their folks in line and picking off a couple of Republicans.

GWEN IFILL: How much harder -- we're thinking of nose counting, for instance, on the stimulus bill -- how much harder does it make it for Harry Reid and for the Democrats to impose their majority status without that extra senator?

AMY WALTER: Well, it is where it's the cushion. You think, all right, the stimulus, the first bill, you had all the Democrats on board, you picked off three Republicans.

On this last bill, the omnibus spending bill that we were talking about earlier in the broadcast, you had three Democrats who defected, but you had eight Republicans come on board, so able to pick up those.

You know going forward we have big, big controversial programs coming forward, whether it's health care reform, more spending, the president's budget for 2010. You're starting to see some cracks in the coalition. So if you are Harry Reid and you feel like, well, at least I've got 59 to start with rather than 58, that might get me that one vote closer to what I would need.

Ugly campaign season

GWEN IFILL: John Cornyn, who's the head of the Republican fundraising arm for the Senate, seems to be using Norm Coleman's plight as a way to raise money. Is that successful?

AMY WALTER: I don't know how successful it is, although it seems successful enough that Coleman has been able to keep up this fight. A lot of times, people throw up their hands in a situation like this, a candidate does, because they just simply don't have enough money to keep going.

So he does need to have help -- "he," being Norm Coleman -- to continue to fund this endeavor. I think, when all is said and done, I don't know how many more people are going to get excited about donating money in the name of Norm Coleman.

GWEN IFILL: Amy, there was a hearing, a joint hearing today on the Hill about the idea of just having new elections whenever this sort of thing happens. And why wasn't there simply a new election here? We've seen vacancies filled in this cycle in Delaware, in New York, in Illinois.


GWEN IFILL: Well, maybe that's not a good example, but there have been vacancies filled with a lot less of this drawn-out drama.

AMY WALTER: Well, there's actually a statute that says -- I mean, there's nothing in the law that says that you can have a re-vote. I mean, that is something that has been talked about. "Why don't we just start from scratch, right, like a do-over? We can't figure this out. Let's just go have another election," which there is some precedent for that back in the '70s in New Hampshire, but there's no precedent for that in Minnesota and no indication that that's going to happen.

But you're right. There's something about Minnesota -- and Eric can probably speak to this better than I can -- whether it's the sort of Garrison Keillor-esque thing going on in the state where they seem to be very patient with this process. I just can't imagine that the people of Illinois, the people of New York -- and I'm from Chicago, so I can say this -- would be as patient waiting for this process.

You already saw how controversial the seating of Roland Burris, how controversial the picking of the replacement for Hillary Clinton was. This seems to have gone on with not a lot of teeth-gnashing from the people of Minnesota.

GWEN IFILL: And might that be part of the reason, also, why the national parties have stayed out of Minnesota so much, because they saw what happened in Illinois and New York?

AMY WALTER: Well, I think that's certainly one reason that you're not seeing Harry Reid demanding that Al Franken be seated.

It's also important to note one reason I think that you're not seeing voters clamoring for somebody to be seated is, as I said, this was a very ugly campaign. I looked back at the polling. The favorable ratings of these two guys at the end of the campaign were 46 percent and 45 percent favorable over 50 percent unfavorable.

So they weren't really beloved by the voters while they were running, so I don't think you'll get the voters right now saying, "Boy, I can't wait for putting one of them in place."

Election system praised in the past

GWEN IFILL: OK, Eric, let's talk about those voters. How patient, really, are the voters of Minnesota? Or have they stopped paying attention entirely?

ERIC BLACK: Well, I think attention has probably fallen off, but -- and I'd say plenty of people are ready for it to be over. But I would say that the state has a basic acceptance that we have a process and it's working.

Minnesota isn't used to being in this particular kind of limelight. We actually are told constantly that we have one of the best election systems. And, in fact, if you look at it objectively, I think that's still true. A lot of flaws in the system come to light in a case like this.

GWEN IFILL: And you're not -- I'm sorry -- there's no concern at all that you only have one senator representing you right now?

ERIC BLACK: Well, sure, there's concern about it, and especially the Franken side keeps raising it, because they're the ones that are in a hurry to have this over, and occasionally you see stories about how, you know, we need that extra voice to make sure we get our fair share of whatever the latest Washington spending is.

But that doesn't get you anywhere. We have -- the process is actually going smoothly. Amy is right. We haven't had riots like they had at some of the Florida recounts. We've had no evidence of any fraud. Even the partisanship of the various referees and judges has been very much in check. And the process is working well, and it's going to get to a conclusion pretty soon.

GWEN IFILL: OK, Eric Black of and Amy Walter of the Hotline, thank you both very much.

ERIC BLACK: Good to be with you.