Minnesota Senate Race
posted by Gerard Magliocca
Like a documentary by Ken Burns, the Minnesota Senate race goes on and on. Al Franken’s lead increased after the contest trial as more disputed ballots were counted. Norm Coleman will now appeal to the State Supreme Court. In the event that this fails to change the outcome, some Coleman supporters are urging him to file a federal suit invoking Bush v. Gore as authority for the proposition that the use of different standards within each Minnesota county to count ballots is unconstitutional.
Of course, the Senate could end this saga today. Article One, Section Five of the Constitution makes the Senate “the Judge of the Elections, Returns, and Qualifications of its own Members.” If it seats Franken, that judgment is final. It is likely that he will be seated once Coleman exhausts his state remedies (unless the GOP filibusters that motion). In that case, any federal suit by Coleman should be dismissed as raising a political question. There is no precedent for a court ordering Congress to remove a seated member, and no such precedent should be created now.
April 9, 2009 at 8:35 am
Posted in: Constitutional Law
Print This Post
Responses (13)
Thomas - April 9, 2009 at 9:25 am
Wouldn’t Coleman’s hypothetical federal lawsuit be one that challenges Minnesota’s actions, not the Senate’s? Are you saying that if Congress ratifies a state’s violation of equal protection, that a federal court is then obliged to dismiss any suit challenging the violations of equal protection? I’d be surprised if it were that easy to avoid the 14th amendment.
Gerard Magliocca - April 9, 2009 at 9:40 am
True, but what relief would he be asking for? Presumably the right to be seated or a new election. The courts cannot give him these once the Senate acts. So whether you want to call this a political question or a lack of equitable power, it amounts to the same thing.
Thomas - April 9, 2009 at 10:02 am
He’d be suing for the right to be declared and certified the winner by the state, which the Senate would be entitled to ignore, just as it is entitled to ignore that certification when there isn’t litigation.
Josh Chafetz - April 9, 2009 at 10:04 am
Indeed, the courts have said as much. See Roudebush v. Hartke, 405 U.S. 15, 19 (1972) (“Which candidate is entitled to be seated in the Senate is, to be sure, a nonjusticiable political question . . . .”); Morgan v. United States, 801 F.2d 445 (D.C. Cir. 1986) (Scalia, J.) (finding a suit challenging the House of Representatives’ seating the Democratic contestant in a disputed Indiana election nonjusticiable).
To put in a shameless plug, I discuss the nonjusticiability of congressional judgments of the elections, returns, and qualifications of members at pp. 55-57 of Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions (Yale 2007), and I discuss the scope of congressional power over disputed elections and qualifications at pp. 162-92 of the same book.
A.W. - April 9, 2009 at 10:19 am
Well, i think you guys are missing an easier way around it: he could ask the Supremes to command the state to count the ballots using a single, uniform standard. whether the senate honors that count would be a different question.
really, i don’t think any of this is properly accounting for the interaction of the 14th amendment with that older constitutional provision.
Chris - April 9, 2009 at 12:43 pm
Isn’t Powell v. McCormack sort of a precedent? Granted, the Court didn’t order Congress to seat someone, but they ordered it to treat someone as if he’d been seated.
bill - April 9, 2009 at 2:06 pm
another Bush v Gore?
Really?
If Roberts and Co. grant cert on that, it’s time for their impeachment. Ridiculous.
Coleman had his day in court and a recount. It’s over and he lost.
Anon - April 9, 2009 at 2:27 pm
When do the “Sore/Loserman” signs come out?
Ken Burns - April 9, 2009 at 3:19 pm
Hey, don’t put down my documentaries! They are freaking awesome!
Jake - April 9, 2009 at 9:42 pm
The notion that any suit by Coleman should be dismissed as raising a non-justiciable political question would be a palatable result if Baker v. Carr, Reynolds v. Sims, and their progeny were likewise annulled.
ohwilleke - April 10, 2009 at 3:26 pm
The fact that the Senate is deferring to the Minnesota courts is a beautiful illustration of the unwritten part of the American constitution. Once, Congress did that sort of thing frequently, without regret, on an openly partisan basis, and it had the authority to do so.
Now, the courts have gained prestitige and the public is far less comfortable with that kind of cynical manipulation of the process, so Congress very rarely calls races, even though it could. Politics and tradition have placed bounds on a well precedented expressly granted constitutional power (ditto executive clemency).
Political scientists, perhaps because they spend too much time next to their colleagues in the economics department, now regularly overrate the degree to which politicians act strictly based upon narrow self-interest, and so are surprised when politicans don’t use the formal powers they have to break these unwritten rules.
katie hoth - April 13, 2009 at 8:58 am
it is my understanding that the 400 ballots they checked were over 75 percent from francken, the vulgar commedian, districts. Now is that fair?
katie hoth - April 13, 2009 at 8:58 am
it is my understanding that the 400 ballots they checked were over 75 percent from francken, the vulgar commedian, districts. Now is that fair?
Leave a Reply