Thursday, April 16, 2009

Court Rejects Coleman Effort to Turn Battle with Franken into Another 'Bush v. Gore'

Declaring Democrat the Winner of Hotly-Contested U.S. Senate Race by a Razor-Thin Margin, a Three-Judge Panel Unanimously Rejects Republican's Argument That Minnesota's Recount Process Is Unconstitutional; Optical-Scan Voting System Is Deemed 'Highly Reliable' Compared to Florida's Problem-Plagued Punch Cards in 2000

A composite image of Norm Coleman and Al Franken.

Republican Norm Coleman (left) may end up having the words "former Senator" preceding his name in the media soon, while Democrat Al Franken (right) may find himself referred to as "Senator-elect," following a unanimous decision by a three-judge Minnesota court panel that rejected Coleman's claim that the state violated the U.S. Constitution by allowing different counties to use different methods to count absentee ballots in the bitterly-contested -- and still unresolved -- U.S. Senate race. The unanimity of the court's ruling will likely make it harder for Coleman -- who's been out of office since his Senate term expired in January -- to overturn Franken's narrow lead over Coleman in last November's election. (Photos: AP via

(Posted 5:00 a.m. EDT Thursday, April 16, 2009)



With its angry charges about voter disenfranchisement, a controversial hand recount and a high-stakes courtroom drama, the battle between Norm Coleman and Al Franken in Minnesota is beginning to look a lot like Bush v. Gore.

Or is it?

Coleman has raised the epic 2000 election fight -- and the 5-4 Supreme Court decision that resolved it -- in trying to make the argument that Minnesota violated the U.S. Constitution’s Equal Protection Clause by allowing different counties to use different methods to count absentee ballots. Coleman has even retained a legendary Bush v. Gore figure, Republican lawyer Ben Ginsberg, to help represent him.

But in ruling against Coleman Monday night, a three-judge panel made its view perfectly clear: This case is not Bush v. Gore, and Minnesota’s electoral process is nothing like Florida’s.


“The citizens of Minnesota should be proud of their election system,” the three judges wrote in a sweeping opinion that roundly rejected Coleman’s arguments. The panel declared Franken the winner by a razor-thin 312 votes out of nearly three million cast.

Unlike Florida in 2000, Minnesota has laws in place that spell out the procedures for a recount and set standards to help determine which ballots could be accept and rejected. While hanging chads from punch-card ballots loomed large in Florida, Minnesota has optical scanners deemed reliable by statewide audits.

And while the legal proceedings in 2000 were filled with split judicial decisions, often breaking down on partisan lines, the unanimous ruling of the three-judge panel gives Coleman little basis to argue that he’s the victim of a partisan judiciary.

Unless the Minnesota Supreme Court -- to which Coleman already has filed an appeal -- rules in his favor (or at least some judges dissent from a majority ruling against him), “it’s going to be a ton of bricks on Norm Coleman’s back,” said Lawrence Jacobs, director of the Center for the Study of Politics and Governance at the University of Minnesota.

“Coleman is helped when there is doubt,” Jacobs said. “What’s been very apparent is that there is no doubt up until this point.”


The legal battle, now in its fifth month, has proven to be very expensive for both Coleman and Franken -- and is going to get even more expensive as it continues to drag on, especially for Coleman, who's going to have to come up with a lot more money than he has now.

Coleman and Franken each carry less than $500,000 in their campaign accounts. In their decision against Coleman, the three-judge panel also ruled that Coleman has to pay court fees and some of Franken’s legal expenses, adding to his already hefty tab.

Since the beginning of the year, Coleman has spent nearly $4 million on legal fees. While he raised $2.3 million this quarter, he now has just $469,563 in cash on hand, according to new campaign finance filings.

Meanwhile, Franken has just $483,731 in his campaign account after raising $2.6 million and spending $3.5 million as the recount trial unfolded.


On Tuesday, Republicans insisted that the entire election process is filled with doubt.

In a fund-raising plea to supporters, Senator John Cornyn (R-Texas), the chairman of the National Republican Senatorial Committee, said that the court’s ruling was “fundamentally misguided” and failed to resolve the equal-protection and due-process violations alleged by the Coleman campaign, saying that some 4,400 absentee ballots remain uncounted.

“It’s frankly shocking that many of the same Democrats who so loudly decried voter disenfranchisement during the Florida recount in 2000 have so quickly run away from that principle when it no longer fits their political agenda,” Cornyn said.

But there’s another catch for Coleman and his Republican allies: Their equal-protection arguments rely in part on the Supreme Court's decision in Bush v. Gore -- a decision that came with a disclaimer by the justices:

“Our consideration is limited to the present circumstances,” the Supreme Court majority said, “for the problem of equal protection in election processes generally presents many complexities.”


The three-judge panel in the Franken-Coleman case took pains to point out how circumstances are different in Minnesota. While acknowledging that errors were bound to happen in any election, the court said that the Minnesota Senate election was free from fraud and that any errors that did take place did not reach a constitutional violation of equal protection.

“There is no evidence of a systematic problem of disenfranchisement in the state’s election system, including in its absentee-balloting procedures,” the judges wrote. “To the contrary, the general election resulted in a ‘fair expression’ of the voters of Minnesota.”

Benjamin Ginsberg, an attorney for Coleman, said Tuesday that the judges spent “so much time in patting their back on the Minnesota system” that they “missed the issue” that thousands of voters are still being disenfranchised.

He argued that Coleman had his due-process rights violated since the court changed its rules in midstream -- an argument that could be raised at the federal level -- and that on appeal to the state Supreme Court, the GOP argument will center on those 4,400 uncounted absentee ballots.

“We’ll be at peace if all Minnesotans are enfranchised,” Ginsberg said.

But Marc Elias, Franken’s attorney, said Tuesday that ballots are often rejected for “a lot of really good reasons,” like people voting who are not eligible, not registered or are convicted felons. And he predicted that if Coleman loses and seeks review from the U.S. Supreme Court, the high court may decline to get involved.

“It’s extremely unlikely that the U.S. Supreme Court would have reason to take it,” Elias said, citing the court’s usual reluctance to dive into electoral matters -- especially given the fact that the high court's public reputation as the impartial arbiter of last resort was damaged following Bush v. Gore.

Nevertheless, it takes only four of the nine justices to grant a writ of certiorari -- a move that would once again put the court in the position of deciding an election.


Meanwhile, a strong majority of Minnesota voters think that Coleman should
concede and that Governor Tim Pawlenty should certify Franken as the
winner, according to a new poll posted Wednesday on the Web site of USA Today.

The survey, conducted by Public Policy Polling, found that 63 percent of Minnesotans believe Coleman should concede the race. While nearly all of Franken's supporters feel that way, nearly a third of Coleman's backers concur with that sentiment.

Fifty-nine percent expressed support for Pawlenty, a Republican, certifying Franken as the winner and for Franken to be sworn in as Minnesota's junior senator immediately afterwards.


Cornyn is threatening “World War III” if Democrats try to seat Franken in the Senate before Coleman can pursue his case through the federal courts.

Cornyn acknowledged that a federal challenge to November’s elections could take “years” to resolve. But he’s adamant that Coleman deserves that chance — even if it means Minnesota is short a senator for the duration.

Eric Schultz, a spokesman for the Democratic Senatorial Campaign Committee, accused Cornyn and the Republicans of holding the Minnesota seat hostage to prevent Democrats from getting a 59th vote in a chamber in which 60 are needed to choke off GOP filibusters and move major pieces of legislation.

“Governor Pawlenty ought to make clear that if former Senator Coleman chooses to appeal the outcome of the contest in the state Supreme Court that this is the end of the road -- and that, consistent with the law, he will certify Al Franken the winner following that state court appeal,” Schultz said.


But even if Coleman pulls off a long-shot legal victory, Democrats are vowing to make him wish that he hadn’t. Separate and apart from the ongoing legal dispute over November’s election, the Minnesota Republican faces several unresolved investigations:

# a reported FBI probe into his dealings with Nasser Kazeminy, a friend and benefactor;

# a potential Senate Ethics Committee inquiry into his Capitol Hill living arrangements;

# a federal elections investigation into his use of campaign donations for legal expenses;

# a possible state probe into his campaign’s handling of donors’ financial information on its Web site.

“Coleman would almost be better off if he lost,” said David Schultz, a professor at Hamline University in St. Paul (who is not related to the Democrats' Eric Schultz). “Should he win, he [Coleman] faces a host of legal and other issues in the Senate. He would enter the Senate with the Kazeminy case shadowing him, and that would almost certainly produce an ethics investigation.”

J.B. Poersch, executive director of the Democratic Senatorial Campaign Committee, says he plans to make Coleman’s problems an issue against Republican incumbents in next year’s midterm elections.

“These are really serious ethical issues, and the longer Republicans entangle themselves with someone like Coleman, the more damage he does to them,” Poersch told Politico. “We’re going to bring them up anyway, but they would be better off if he was out of the Senate.”

Senator Debbie Stabenow (D-Michigan) echoed those sentiments, adding, “I think it appears he’s got a number of challenges in front of him. I would think it would be wise for him to make a decision to accept the outcome of the voters in Minnesota.”

Coleman, who on Thursday laid out his legal strategy to supporters in Washington, has flatly denied any wrongdoing and dismissed the complaints against him as a smear campaign organized by Democrats.

“Senator Coleman will be returning to the Senate as the state’s senior senator with elevated posts on the committees and in a position to provide Minnesotans with the high-quality constituent services that earned him the nickname ‘Minnesota’s mayor in Washington,’” said Tom Erickson, a Coleman spokesman. “He remains encouraged by the support of his colleagues in the Senate who are committed to seeing that every legal vote is counted.”

Erickson says Franken himself faces unanswered questions about his failure to pay taxes and workers’ compensation fees in 18 states prior to his campaign. Erickson singled out Franken’s claim that he was unable to locate information on his tax payments prior to 2003, saying, “I think the scope of these issues would make Tom Daschle blush.”

(Politico's Glenn Thrush and USA Today contributed to this report.)

# # #

Volume IV, Number 30
Special Report Copyright 2009, Capitol News Company LLC.
The 'Skeeter Bites Report Copyright 2009, Skeeter Sanders. All rights reserved.


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Monday, April 13, 2009

Economy Remains Issue No. 1, But Right-Wingers Paranoid Over Guns, Gays and Kids

With the GOP Cast Out Into the Political Wilderness, the Right-Wing 'Culture Warriors' Launch New Scare Campaigns Over Gun Control, Same-Gender Marriage and the Rights of Children -- But This Time, They're Being Dismissed as Being Out of Touch With Most Americans More Concerned About the Economy and Health Care

The sorry state of the nation's -- and the world's -- economy remains the number-one topic of concern among the vast majority of Americans. But you wouldn't know it if you paid attention only to the rumblings coming from the far right end of the political spectrum. While most Americans are concerned about keeping their jobs, making ends meet and maintaining health care they can afford, those on the Far Right are sounding increasingly loud alarms about an alleged loss of freedom to own firearms and about a so-called "redefinition" of marriage to include same-gender couples. Now the Right is targeting a new bogeyman: An international treaty on the rights of children. They're pushing to counter the treaty with a constitutional amendment "asserting the rights of parents." (Image courtesy

(Posted 5:00 a.m. EDT Monday, April 13, 2009)


President Obama's job-approval ratings remain steady at 62 percent, according to the latest Gallup Poll. His just-concluded first trip abroad was a hit, both abroad and at home. Americans, while still concerned over the state of the economy, are starting to show a greater optimism about it.

Meanwhile, Republicans -- who strongly object to the president's policies -- are finding themselves increasingly isolated politically, as they've failed so far to come up with any serious alternative proposals beyond the tried-and-true (and resoundingly discredited) nostrums of the Reagan Revolution.

But rather than focus attention on the number-one issue on the minds of most Americans, the Republicans, urged on by their hard-line social-conservative base, are pushing for a constitutional amendment that would negate an international treaty on the rights of children -- a treaty that the Senate has yet to ratify.

And that's not all. Social conservatives are again raising hell about gun control, abortion and same-gender marriage -- in essence, attempting to re-ignite the culture wars.

The problem for the social conservatives this time, however, is that 1) the economy is trumping everything, and 2) their staunchest allies in the Republican Party are not only out of power, but many are out of office altogether.


“I think most people want relief from the divisive debates of the culture wars,” said Mark McKinnon, a former adviser to Senator John McCain’s presidential campaign and a Republican consultant told “Given the economic hardships most are facing, they probably view these arguments as old, irrelevant and a distraction. That said, I’m sure the cultural warriors are putting on their war paint and banging the tom-toms.”

Indeed, social conservatives, with their insistence on focusing on hot-button issues such as same-gender marriage, gun control, abortion and illegal immigration, are running a serious risk of being branded irrelevant and out of touch at a time when most Americans are more concerned about keeping their jobs, paying their mortgages, being able to afford to retire and having health insurance.

That the economy remains the number-one issue for most Americans is underscored by the latest Gallup Poll, which shows that while optimism about the economy remains scarce -- only 27 percent of Americans say the economy is getting better and 67 percent say it is getting worse -- that optimism is has begun to grow after 15 months of steady decline.

Americans' overall satisfaction with the way things are going in the country remains decidedly negative, but has slowly and steadily improved in recent weeks, Gallup reported last week. Twenty-six percent of Americans polled between March 30 and April 5 said they were satisfied, up from 15 percent in mid-February.

The rebound in satisfaction has mainly been the result of greater optimism among Democrats, according to Gallup. Now, 40 percent of Democrats are satisfied, up from 21 percent in mid-February. There has been a smaller increase among independents over this time, from 14 percent to 23 percent. Even Republicans' reported satisfaction has improved somewhat, though it is still quite low at 13 percent, after bottoming out at seven percent in mid-February.


But while most Americans are focused on the economy, social conservatives are zeroing in on a United Nations treaty on the rights of the child that they see as a threat to parental authority and are pushing for a constitutional amendment to block it.

Representative Pete Hoekstra (R-Michigan) last week introduced in the House a constitutional amendment to permanently “enshrine” in American society an "inviolable" set of parents’ rights. The proposed "Parental Rights Amendment" has 70 co-sponsors -- all of them Republicans -- but has little chance of winning the necessary two-thirds majority for passage.

The 1989 treaty, officially known as the U.N. Convention on the Rights of the Child, has never been taken up by the Senate for ratification, even though it was signed by President Bill Clinton in 1995. It sets international standards for government obligations to children in areas that range from protection from physical, mental or sexual abuse and exploitation to ensuring a child’s right to freedom of expression.

The treaty gained attention following horror stories out of Somalia of children as young as nine being forced to fight for the Lord's Resistance Army in that war-torn country. The United States is the only U.N.-member country other than Somalia that has not ratified the treaty.

Yet it has drawn fierce opposition from Michael Farris, founder of the Home School Legal Defense Association. Farris says that the treaty would usurp parental authority. “Parents would no longer be able to administer reasonable spankings to their children," he told “A child’s ‘right to be heard’ would allow him [or her] to seek governmental review of every parental decision with which the child disagreed."

But Farris, a self-declared Christian conservative, may have revealed the real reason for his opposition to the treaty: Religion -- more specifically, the religious upbringing of children. In a posting to his Web site,, Farris wrote of the treaty: “Children would have the legal right to choose their own religion while parents would only have the authority to give their children advice about religion.”

Farris apparently wants the Parental Rights Amendment passed to enable parents to force their children to adhere to the parents' religious beliefs. Never mind the fact that children already have the freedom to choose their religion -- or to choose no religion at all -- under the First Amendment.


Meanwhile, another social conservative group found itself the target of ridicule in Vermont after it launched a campaign-style ad blitz in a failed effort to derail a bill in the state legislature to legalize same-gender marriage.

The National Organization for Marriage bombarded Vermonters with a last-minute radio ad that claimed that opponents of same-gender marriage are now being victimized for their beliefs.

"There's a storm gathering," one woman says as the spot opens. Says another woman: "I am afraid." Later in the spot, a man says same-sex marriage advocates "want to bring the issue into my life." He is followed by a woman who says "my freedom will be taken away."

Another woman says same-sex marriage advocates "want to change the way I live." A teenage girl intones, "I will have no choice."

The ad was immediately ridiculed, even by Vermonters opposed to the same-gender marriage bill before the legislature. NOM, based in California, had made a serious tactical blunder: It did not count on Vermonters' prickly reputation for resenting outside interference in local and state affairs.

In the end, the group's strategy backfired: Governor Jim Douglas' veto of the measure was overridden within 24 hours, with several lawmakers who initially voted against the measure reversing themselves and voting in favor of the override.

“Obviously they [NOM] understand that appealing to people’s fears is a way to gin up money and rally the base,” said Joe Solmonese, president of the Human Rights Campaign, a gay rights advocacy group. “When we get to a tipping point, that’s when our opposition is most vociferous.”

The social conservatives' ire isn't limited to same-gender marriage itself. Representative Mike Pence (R-Indiana), chairman of the House Republican Conference, lobbied against the appointment by President Obama of Harry Knox, an executive of the Human Rights Campaign, to the president’s Advisory Council on Faith-Based and Neighborhood Partnerships.

Pence claimed that the appointment of Knox, who is gay, to a presidential commission “makes a mockery out of the religious beliefs of countless Americans.” Pence's lobbying, however, went nowhere.


About the only hot-button social issue where Democrats appear unwilling to make any bold moves is gun control, in part due to a U.S. Supreme Court ruling last year that struck down Washington D.C.'s handgun ban and in part because many moderate Democrats in Congress represent districts where gun ownership rights are a major issue.

The mass shootings in Binghamton, New York and Carthage, North Carolina, combined with the fatal shootings of police officers in Pittsburgh have sparked new debate on gun control, but Democrats appear unwilling to take on the National Rifle Association.

When pressed on the issue during an interview broadcast last Wednesday on "The CBS Evening News with Katie Couric," Attorney General Eric Holder appeared uncomfortable discussing it. Holder, who had been a strong supporter of gun control legislation for years, denied that he had been told not to speak about it. “No one's told me to back off,” Holder told Couric. “I understand the Second Amendment. I respect the Second Amendment.”

But sooner or later, the administration will have to take a stand, one way or the other -- especially if the number of deadly shootings increases later this spring and into the hot summer months.

# # #
Volume IV, Number 29
Copyright 2009, Skeeter Sanders. All rights reserved.


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