Campaign Diaries

Norm Coleman has few paths left to him to overturn Al Franken 47-vote lead, and the state Supreme Court made his life that much more difficult with its Christmas Eve ruling on the (confusing) issue of potentially double-counted ballots.

The Coleman campaign was seeking to prevent the state canvassing board from certifying a winner until the dispute was taken care of. In other words, it was arguing that the matter should be decided by the canvassing board rather than in the courtroom.

This matters a great deal: For the issue to be left to courts means that the canvassing board could certify Al Franken as the winner before a judge rules on double-counted ballots. Coleman would then be stuck in the unenviable position of contesting certified results, a difficult proposition both legally and in regards to public opinion.

Last week, the canvassing board ruled that it did not have the jurisdiction to consider this issue because it cannot hear extrinsic evidence; the Supreme Court unanimously upheld this decision yesterday and invited Coleman to file lawsuits if it wants to pursue the matter. The GOP left no doubt that it was intending to do just that. “It will be the [court] stage now that we must resort to if those become the margin of victory for Franken,” said a Coleman lawyer.

This leaves the 1,600 improperly rejected absentee ballots as Coleman’s only hope to take the lead before the canvassing board’s certification. Put it otherwise: If Al Franken had not clamored for this fifth pile of ballot to be counted, there would be no more obstacle to his becoming the certified winner!

Unfortunately for Democrats, 1,600 is a large enough number that anything is possible and Franken’s 47-vote lead means very little, even though these ballots were always expected to break towards the Democrat.

Coleman’s other hopes would all take place as litigation to be resolved after the canvassing board’s certification. These will involve the double-counted ballots, Minneapolis’s 133 missing ballots, and perhaps an attempt to throw out the 1,600 absentee ballots depending on how their tally turns out.

And make no mistake about it. For Al Franken to be certified the winner would make him look legitimate and cast Coleman in an uncomfortable position, but it would certainly not guarantee the failure of litigation: These lawsuits would all represent major threats that could overturn a Franken victory.

(In fact, the Supreme Court made it clear yesterday that its ruling was not meant to close the chapter of double-counted ballots. As the AP puts it, “Associate Justice Alan Page made it clear the issue of duplicate ballots was unresolved and said the court’s ruling was not binding in a future lawsuit.”)

One looming (and potentially major) issue: What will Senate Democrats do once the 111th Congress reconvenes?

That Democrats have a large majority in the Senate could ultimately emerge as Franken’s ultimate trump card. Even though they are unlikely to do anything dramatic, there are ways in which they could influence the process: If Al Franken is certified the winner, Senate Democrats could hurry his seating - even if his margin is narrow and still contested. If Norm Coleman takes a narrow single-digit lead after absentee ballots are counted and is thus certified the winner, Senate Democrats could block Coleman from being seated - at least until court challenges are resolved; they could perhaps launch their own investigation (as occurred chaotically in 1974).