United States Senate election in Minnesota, 2008

The 2008 United States Senate election in Minnesota took place on November 4, 2008. After a legal battle lasting over eight months, Al Franken from the Democratic-Farmer-Labor Party (DFL) defeated Republican incumbent Norm Coleman in one of the closest elections in the history of the Senate. Al Franken took his oath of office on July 7, 2009, more than half a year after the beginning of his term on January 3, 2009.^[3]

When the initial count was completed on November 18, Franken was trailing Coleman by 215 votes.^[4][5] This close margin triggered a mandatory recount.^[6][7] After reviewing ballots that had been challenged during the recount and counting 953 wrongly rejected absentee ballots, the State Canvassing Board officially certified the recount results with Franken holding a 225-vote lead.^[8][9][2]

On January 6, 2009, Coleman's campaign filed an election contest and on April 13, a three-judge panel dismissed Coleman's Notice of Contest and ruled that Franken had won the election by 312 votes.^[1][10] Coleman’s appeal of the panel's decision to the Minnesota Supreme Court was unanimously rejected on June 30,^[11] and he conceded the election.^[12] Al Franken was sworn in as the junior Senator from Minnesota on July 7, 2009.^[13]

Candidates

The general election was among candidates nominated by three major parties, the Minnesota Democratic-Farmer-Labor Party (DFL), the Republican Party of Minnesota (R), and Independence Party of Minnesota, as well as two other parties, the Libertarian Party (L) and the Constitution Party (C). The Green Party failed to nominate a candidate.^[14]

• Charles Aldrich (L)
• Dean Barkley (IP)—Former U.S Senator, co-founder of the Minnesota Independence Party.^[15][16]
• Norm Coleman (R)—First-term incumbent Senator, former mayor of St. Paul.
• Al Franken (DFL)—Former Air America radio talk-show host, writer, comedian, and political commentator.
• James Niemackl (C)

Primaries

In Minnesota candidates are generally endorsed by their political party before the party primaries. The Republican Party endorsed Norm Coleman,^[17] the DFL Party Al Franken,^[18] and the Independence Party Stephen Williams. In total 18 candidates had filed to run in the statewide primaries, including seven for the DFL Party, two for the Republican Party, seven for the Independence Party, one for the Libertarian Party, and one for the Constitution Party.^[19][20]

Notable challengers included former Ventura administration official Jack Uldrich and former Senator Dean Barkley for the IP nomination; lawyer and vocal Franken critic Priscilla Lord Faris for the DFL nomination; and dentist and fugitive^[21] Jack Shepard for the Republican nomination. Minneapolis attorney Mike Ciresi also campaigned for the DFL endorsement, but dropped out on March 10. Each party's respective primary was held on September 9, resulting in Barkley, Franken and Coleman on the general election ballot.

DFL

The following candidates sought an endorsement at the party's convention, but dropped out after Al Franken was endorsed: Mike Ciresi, Jim Cohen and Jack Nelson-Pallmeyer

Independence

Though Stephen Williams was endorsed by the Independence Party, he lost to Dean Barkley by over 51 points.

Republican

Fundraising

2007 year-end reports filed with the Federal Election Commission showed that Al Franken had raised $7.04 million through 12/31/2007 while Norm Coleman had raised $6.24 million. Year-end cash on hand was $6.04 million for Coleman and $3.10 million for Franken.^[23]

Pre-primary reports filed with the FEC that cover finances through August 20 show Coleman having raised $16.76 million (with $5.61 million on hand). Franken had raised $13.09 million (with $2.37 million on hand), and Barkley had raised $14,374 (with $5,071 on hand).^[24]

A report in late October, by the Star Tribune, showed Barkley having raised $56,763 for his campaign.^[25]

Predictions

In June 2008, Senator John Ensign, the chairman of the National Republican Senatorial Committee, stated that the Minnesota Senate race would be one of the ten most competitive Senate races.^[26] CQ Politics rated this race as 'No Clear Favorite'.^[27] The Cook Political Report considered it a 'Toss-Up'.^[28] The Rothenberg Political Report considered it a 'Narrow Advantage for Incumbent Party'.^[29]

Polling

Early polling showed Coleman with a large lead over his prospective Democratic opponents. The senate race narrowed considerably, however, to become one of the most hotly contested elections in the nation in 2008. A January 29, 2008, Minnesota Public Radio poll showed the first lead for Franken.^[30] Independence Party challenger Dean Barkley consistently polled in the 15–20% range; he was never able to break the 20% point.

Results

After all the votes were tallied, Norm Coleman led Democrat Al Franken by 215 votes – well under the one half of one percent margin that triggers a mandatory recount according to state law. The recount did not begin until November 19, and finished on December 5, with ballot challenges and other matters yet to be totally resolved.^[32]

Early on November 5, news organizations including the Associated Press, Minnesota Public Radio, and Fox News^[33] had called the election for Coleman; however, MPR and the AP uncalled the race mere hours later.^[34] Coleman declared himself the victor, and suggested that Franken waive his right to a recount. Franken was unwilling to do so.^[35]

Since the unofficial results were first posted on the Minnesota Secretary of State's website, Coleman's lead had narrowed from 726 votes on November 5 to the official tally of 215 votes on November 18. Secretary of State Mark Ritchie called these changes "well within the normal range in the days immediately following an election, when county officials double check and verify election night tabulations reported to the secretary of state's office," while Coleman's campaign decried the "improbable shifts that are overwhelmingly accruing to the benefit of Al Franken."^[36] An independent analysis of statewide elections over the prior 10 years showed that the average change in vote totals as reported on election night compared to the certified result is 1,500 votes.^[37] The results were certified by each county's canvassing board and then on November 18, 2008, by the Minnesota State Canvassing Board.

Note: The ±% column reflects the change in total number of votes won by each party from the previous election. Additionally, votes cast for Paul Wellstone in the 2002 election are not factored in to the DFL's total from that year.

Recount

In accordance with state law, the Minnesota State Canvassing Board ordered a hand recount in the Senate race, because the margin of victory was within one half of one percent.^[40] Representatives of Coleman and Franken observed the sorting and recounting of the ballots at 120 locations across the state on November 19, and largely finished on December 5. The votes were counted locally, but ballots that were challenged by either campaign were sent to the state capital for consideration by the State Canvassing Board. The board was a five-person panel consisting of Secretary of State Mark Ritchie, Minnesota Supreme Court Chief Justice Eric Magnuson, Justice G. Barry Anderson, Ramsey County District Court Chief Judge Kathleen Gearin, and Assistant Chief Judge Edward Cleary; they made determination of the voters' intent for ballots where either of the campaign's representatives disagreed with the election officials at the county sites. Of the five Canvassing Board members, Ritchie was an elected DFLer, the two justices were appointed by a Republican governor, one judge was appointed by an Independence Party governor, and one was elected in a non-partisan election.^[41]

Of the 4130 precincts in Minnesota, one had to delay reporting its totals because election officials deduced that 133 ballots, all contained in a single envelope, had gone missing during the recount process.^[42] After days of searching,^[43] the State Canvassing Board decided to use that precinct's election day totals, which included the missing 133 votes.^[44] The 133 missing ballots contributed a net 46 votes for Franken.

By the end of the recount, each candidate had gained votes, as is reflected in the "± Votes" column listed below. In total, Coleman had challenged 3,377 ballots and Franken had challenged 3,278. These ballots were set aside until the State Canvassing Board could meet on December 16, at which point the board began deciding on the challenged ballots. Ritchie's office, however, insisted that each campaign voluntarily withdraw some of their challenges, due to the strain a large pile of ballot challenges would place on the State Canvassing Board. On December 3, Al Franken's campaign withdrew 633 of their challenges, and said that they would withdraw more at a later date.^[45] The next day, Coleman's campaign responded by withdrawing 650 challenges.^[46] By the time all of the ballots that Franken's campaign challenged were examined, he had only 420 challenges left that had not been withdrawn,^[47][48] while Coleman's campaign had roughly 1000.^[49] The Secretary of State's website had noted that none of the withdrawn ballot challenges were reflected in the running tally of the recount.^[50]

By December 19, the State Canvassing Board had largely concluded their review of ballot challenges from each campaign. Of the 1,325 ballots that were reviewed, 319 were awarded to Coleman, 758 were awarded to Franken, and 248 were labeled "other". According to the AP,^[51] MPR^[52] and the Star Tribune,^[53] the resolution of these challenges marked the first time Franken had taken a lead in the recount. On December 30, the board finished reallocating the withdrawn challenges, completing this phase of the recount and leaving Franken with a 49 vote lead.^{[54][55][56][57]}

One of the last—and largest—sources of uncertainty had been the absentee ballots which had been improperly rejected by election officials during the original count. Franken's campaign asked for these ballots to be tallied by each county and counted in the recount results, while Coleman's campaign said the canvassing board did not have the authority to deal with the ballots. On December 8, some counties began sorting rejected absentee ballots to find out how many were incorrectly rejected.^[58] On December 12, the Board voted unanimously to recommend counties sort through their rejected absentee ballots, setting aside any that were incorrectly rejected, and to resubmit their vote totals with the incorrectly rejected ballots included.^[59] The Coleman campaign filed suit with the state Supreme Court to temporarily halt such counting until "a standard procedure" could be determined,^[60] but the State Supreme Court ruled on December 18 that the improperly rejected absentee ballots be included in the recount.^[61] The Court also prescribed that a standard procedure be established by the Secretary of State's office in conjunction with the two campaigns.

As of December 30, county officials had found about 1,350 wrongly rejected ballots. The Franken campaign agreed to count all of those ballots, while the Coleman campaign agreed to a subset, and also wanted to reconsider more than 700 other absentee ballots. On December 30 and 31, representatives of both campaigns met with officials in each county and sorted through the absentee ballots. After some ballots were rejected by one campaign or the other, 953 ballots were sent to the secretary of state's office. The "fifth pile" of wrongly rejected absentee ballots were opened, checked for identifying marks, and counted (where found eligible) on January 3, 2009. Of the 933 ballots that were found to be eligible, 481 were for Franken, 305 were for Coleman, and 147 were for other candidates, or were overvotes or undervotes. The process was broadcast live online by independent news outlet The UpTake.^[62]

The state canvassing board certified the recounted vote totals on January 5 with Franken ahead by 225 votes.^[8] Former Minnesota Governor Arne Carlson, a Republican who did not endorse a candidate in the 2008 Senate race, called for Coleman to concede.^[63]

Note: The ±% column reflects the change in total number of votes won by each party from the previous election. Additionally, votes cast for Paul Wellstone in the 2002 election are not factored in to the DFL's total from that year.

Election certificate

After the Canvassing Board finished the recount, the next step was for the state to issue an official certificate of election. State law requires a seven-day delay from the Canvassing Board's final report until the certificate can be issued and signed by Minnesota Secretary of State Mark Ritchie and Minnesota Governor Tim Pawlenty. Furthermore, state law states that a certificate cannot be issued if an election contest is pending.^[66][67]

On January 12, 2009, Franken sent a letter to Ritchie and Pawlenty requesting an election certificate. Both declined, citing the unresolved election contest by Coleman.^[68] Later that day, Franken filed suit in Federal court to force the state to issue a certificate, claiming that federal law relating to Senate elections superseded state law.^[68] The next day his campaign asked the Minnesota Supreme Court to require Pawlenty and Ritchie to issue the certificate,^[67] and the court held a hearing on the suit on February 5, 2009.^[69]

Texas Senator John Cornyn said that GOP senators were prepared to filibuster the seating of the canvassing board's declared winner until a signed election certificate is available, as provided under Minnesota law.^[66][70] On January 21, 2009, the day after the inauguration of Democratic President Barack Obama, Senate Majority Leader Harry Reid said that Senate Democrats are "going to try to seat Al Franken" at least provisionally until the challenge is resolved. Reid also said that there was "not a question in anyone's mind . . . that there's been any fraud or wrongdoing in this election." Senate Republican leaders countered this by insisting that Franken respect Minnesota laws and allow the completion of the legal review.^[71][72]

Election contest

Coleman filed a contest of the election results in the Ramsey County District Court on January 6, 2009.^[73] In it, he alleged ballot counting irregularities which, if corrected, would result in his winning the election.^[74] Among other issues, he alleged that there were double-counted duplicate ballots, 654 valid absentee votes rejected as invalid by county election officials,^[75][76] and problems in dealing with the lost ballots in a Minneapolis precinct.^[74][77]

Under Minnesota law the chief justice of the state Supreme Court appoints a three-judge panel to hear an election contest. Because Chief Justice Magnuson had served on the state canvassing board, he recused himself, passing the task to Alan Page, the senior justice on the court.^[78] Page chose Judge Elizabeth A. Hayden of Stearns County (who was first appointed by DFL governor Rudy Perpich) to preside over the contest. Assistant Chief Judge Kurt J. Marben of Pennington County (appointed by Independence Party governor Jesse Ventura) and Assistant Chief Judge Denise D. Reilly of Hennepin County (appointed by Republican governor Arne Carlson) were also appointed.^[79]

On January 12, 2009, Franken filed a motion to dismiss Coleman's contest, claiming it was "an imprecise and scattershot pleading". He argued that even if the contest were to proceed, the three-judge panel should be limited to determining who would be awarded the already certified ballots and to a simple, mathematical recount to ensure the accuracy of the canvassing board's count, while no additional ballots should be reviewed.^[73] On January 22, 2009, Franken's attorneys also argued that the case should not go to trial because the U.S. Senate itself, rather than the court system, has the power under the United States Constitution to judge the election of its own members.^[80] Franken's motion to dismiss was denied by the panel on January 23.^[81]

On January 19, 2009, Coleman attorney Fritz Knaak requested that the court open and review all rejected absentee ballots – totaling roughly 12,000 – because some of them, he contended, were improperly rejected.^[82] Coleman's attorneys also proposed a multiple phase trial that would not start until February 2, in which the first phase would focus on rejected absentee ballots.^[83] The panel denied these requests on January 23.^[81][84]

The trial began on January 26. Coleman's legal team ran into trouble on the first day when the judges refused to enter into evidence copies of the envelopes from allegedly wrongly rejected absentee ballots. Coleman's team had marked on some of their copies of the envelopes, so the panel ruled that Coleman's attorney would need to subpoena the original absentee ballot envelopes from the counties.^[85]

On February 3 the judges agreed to consider 4,797 rejected absentee ballots. This was fewer than the number requested by Coleman but greater than Franken requested. These ballots fall into two categories: those where voters appeared to have met all legal requirements, and those where voters ran afoul of the law through no fault of their own.^[86]

On February 13 the court ruled that no evidence had been presented to establish widespread problems with the counting of absentee ballots and that rejected absentee ballots from 12 of 19 disputed categories would not be counted. According to Coleman's attorney, this left approximately 3,500 ballots still open for consideration. The order also specified that parties must demonstrate that disputed ballots were legally cast, not just that they should not have been rejected, making it more difficult to argue in favor of counting remaining absentee ballots.^[87][88]

On March 2, the Coleman team rested its case after five weeks of testimony. The contest resumed on March 3 with the Franken team presenting its counter arguments. On March 13, the trial portion of the contest concluded with closing argument from both sides. Franken's closing was delivered by attorney Kevin Hamilton and Coleman's by Joseph Friedburg. After the closing arguments, Franken lead attorney Marc Elias stated: "After seven weeks of trial, hundreds of witnesses, and thousands of exhibits, the trial demonstrated what the state canvassing board found to be true after an exhaustive recount: that Al Franken got more votes on Election Day than Norm Coleman. We remain confident that the court will uphold the results of the election and allow Al Franken to begin the work the voters of Minnesota hired him to do."^[89]

On March 31, the court issued an order to count at most 400 rejected absentee ballots and denied any other relief.^[90][91] On April 7, the court scrutinized these ballots and determined that 351 had been legally cast. Those votes were counted, with 111 going to Coleman, 198 to Franken, and 42 to Other, giving Franken a final margin of 312 votes.^[92]

The court dismissed Coleman's suit "with prejudice" in its final ruling on April 13, finding that his claims had no merit and ordering the Coleman camp to pay the legal costs associated with Coleman's failure to disclose information about Pamela Howell, a precinct election judge and witness in the case,^[1] which was later determined to amount to $94,783.^[93] In the same ruling, the court also rejected Coleman's claim to exclude 132 missing ballots from the recount total and his request to adjust the results based on Coleman's allegations of double counted ballots.^[10][94]

Note: This table combines the certified results of January 5, 2009, listed above with the added absentee ballots from April 7, 2009, 198 for Franken and 111 for Coleman.

Appeal to Minnesota Supreme Court

On April 20, Coleman filed a notice of appeal to the Minnesota Supreme Court.^[95] Franken's lawyers requested that the court follow an expedited schedule in hearing the case (with oral arguments scheduled mid May) to enable Minnesota to have two seated Senators.^[96][97] In his reply, Coleman asked the Court to take its time, which probably would delay a decision of the Minnesota Supreme Court until June, and possibly into yet another appeal to the United States Supreme Court when its 2009 term started in October.^[98] On April 24, the Court issued its order for briefs and oral arguments.^[99] Oral arguments took place on June 1, 2009.^[100] After the arguments the Minnesota Supreme Court did not indicate how soon it would render judgment.^[101]

Some Democrats and political commentators asserted that Coleman no longer had a serious chance of prevailing in the election, and that he continued to file appeals for the sole purpose of delaying the seating of the 60th member of the Democratic Caucus in the U.S. Senate (after the switch of Arlen Specter from Republican to Democratic on April 28).^[102][103] Sixty Senators would bring the Democrats to a level where they would not need any Republican votes to overcome a Republican filibuster in the Senate for the balance of the Senate term (assuming a straight party-line vote).^{[104][105][106]} Norm Coleman disputed these allegations.^[107] About 60% of Minnesotans (64–28, 59–34, 63–37 in three polls) said they wanted Coleman to withdraw.^[108]

On June 30, 2009, the Minnesota Supreme Court unanimously rejected Coleman's challenge and stated that Franken was entitled to be certified as the winner. Coleman announced he would not appeal the result further, and congratulated Franken by phone, telling him that being senator was "the best job he would ever have."^[109][110] Governor Pawlenty and Secretary of State Ritchie signed the election certificate on the same evening.^[111]

Further investigations

In July 2010, Minnesota Majority, a conservative watchdog group, conducted a study in which they claimed that at least 341 convicted felons in the largely Democratic Minneapolis-St. Paul area voted illegally in the Senate race.^[112] Subsequent investigations of Minnesota Majority's claims by election officials found that many of their allegations were incorrect. Some of the cases that were submitted involved mistaking a legal voter for a felon with the same name, others involved felons who had had their voting rights reinstated after serving their sentences, and others were felons who illegally registered to vote, but did not vote in 2008 election.^[113][114] Columnist Nick Coleman of the Minneapolis-based Star Tribune called the idea that illegal voting by felons made a difference in the race "unbelievable" and the Minnesota Majority report "good fodder for a right-wing scare campaign."^[115]

In October 2010, the Hennepin County Sheriff's Office concluded an extensive investigation into 110 allegations of fraud, which resulted in six charges being filed — two individuals were charged with the separate felonies of registering to vote while ineligible and voting while ineligible and four others were charged with voting while ineligible.^[116]

See also

• United States Senate election in New Hampshire, 1974
• List of narrow elections

References

External links

• Sheehan & Coleman v. Franken, no. A09-697, Minn. Supreme Court, June 30, 2009 (Minnesota Supreme Court opinion holding that Franken is entitled to election certificate)
• Coleman for Senate Official campaign website
• Franken for Senate Official campaign website
• Recount Coverage from VoteForAmerica.net
• Minnesota Secretary of State recount totals
• Election Contest Court website
• Minnesota Senate Seat ’08 Election at the Minnesota Judicial Branch website; provides copies of filings and orders in the case
• Election Center from the Minnesota Secretary of State
• News and Candidate Bios from Votimus.com
• Minnesota, U.S. Senate from CQ Politics
• Minnesota U.S. Senate from OurCampaigns.com
• Campaign contributions from OpenSecrets.org
• Coleman (R-i) vs Franken (DFL) vs Barkley (I) graph of multiple polls from VoteForAmerica.net
• Coleman (R-i) vs Franken (D) graph of multiple polls from Pollster.com
• Joe Conason on the recount—Salon.com
• This Is Not Florida: How Al Franken Won the Minnesota Senate Recount, by Jay Weiner.
• Recounting Minnesota: Blogging the Al Franken Election Saga, by Carl Eeman.