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Election recount could be just the beginning of long battle

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Counting ballots in Ramsey County
Each table in the recount room included three elections officers to count and sort ballots, two representatives, one from each campaign, and an incident reporter. Ramsey County recount, St. Paul, MN November 20, 2008.
MPR Photo/Caroline Yang

So far, the two major campaigns for Minnesota's Senate seat say the recount of the state's 2.9 million votes is pretty much by the book.

"Everybody seems to be doing their job very well indeed," said Fritz Knaak, Norm Coleman's lead attorney. "We're very pleased with elections officials overall."

Minnesota recount day 2
Minnesota entered Day 2 of the recount process, where over 2.9 ballots will be hand-counted in order to determine the senate race between Norm Coleman and Al Franken.
MPR Photo/Caroline Yang

Norm Coleman led DFL challenger Al Franken by just 215 votes in the first unofficial count.

Once the state has finished counting the votes again, Minnesota's State Canvassing Board will meet to go over the results. Secretary of State Mark Ritchie and a panel of four judges will sort through hundreds, perhaps thousands, of challenged ballots from around the state.

But after that, there could be a long legal detour for the hard-fought Senate campaign that started nearly two years ago. 

The candidate who loses the recount could take the matter to court, in what's known as an election contest. Two close Congressional races in Minnesota were decided that way, in 2000 and 1986.

Any number of allegations, from rejected absentee ballots to claims of voter registration fraud, could be grounds for one of the campaigns to file suit. The contest of a statewide election would then be heard in St. Paul by a three-judge panel, appointed by the state's Supreme Court. 

A ballot challenged by the Franken campaign
A ballot challenged by the Franken Campaign during the recount process for Ramsey County in St. Paul, MN November 2008.
MPR Photo/Caroline Yang

Ramsey County elections manager Joe Mansky said there's no obligation for a court to accept the results of the administrative recount that's going on now.

"Even if you've had an administrative recount, you could get what we call a second bite at the apple, by asking for a recount as part of an election contest," Mansky said.

By law, the state's courts would decide who got the most votes, then hand the entire case over to the U.S. Senate. It could stop there, but the U.S. Constitution says the Senate is the ultimate arbiter of its members' elections, and it's not legally bound to abide by a Minnesota court decision.

But both campaigns said they're not planning to go that far, beyond the recount that's underway.

"I'm not going to speculate on where things could go and where things wouldn't go after that," Mark Elias, a D.C. attorney working for the Franken campaign.  "We are taking it step by step and letting the process play out."

But both campaigns also said they expect their rivals will go to court rather than accept a loss. Coleman attorney Fritz Knaak notes that the Franken campaign already sued to get access to information on absentee voters whose ballots were rejected.

Storing ballots
Ballots that have been sorted and counted are packaged in boxes, sealed with signed labels, and brought to a separate storage location.
Caroline Yang for MPR

"What I have consistently seen that as, is basically positioning for a post-recount challenge, or a judicial challenge of the election," Knaak said. "And that's what we're looking at them doing."

There's another potential legal twist, as well.

Minnesota law says if the state doesn't have a U.S. Senator, the governor can appoint one. So if a winner hasn't been declared when Congress convenes in January, Republican Governor Tim Pawlenty could name a temporary replacement.

But the vacancy law doesn't have a look-back clause. That means there is no requirement to consider the results of a past election. The law calls for another election to be held to replace the temporary senator. That second election wouldn't be official until Thanksgiving, 2009.

Before that would happen in Minnesota, however, a court would have to declare the seat vacant. That would likely spark another high-profile legal battle. 

And finally, there's one more factor to consider. 

The U.S. Constitution gives the Senate broad authority to decide who joins the body, by a simple majority vote. Either candidate could go to Capitol Hill and appeal directly to the other 99 Senators.

The Senate's only real obligation is spelled out in a U.S. Supreme Court decision. A close Senate race in Indiana in 1970 quickly made its way to Capitol Hill. But the Supreme Court said the election had to work its way through a state process before the Senate could take it up.

That Supreme Court ruling came in 1972. A year and a half after the polls had closed.