The recount proceeded in an open and transparent way. Results were reported by the Secretary of State and in the states major newspapers daily. Controversies between the campaigns were handled by the appropriate courts and decisions were made in a very timely fashion.
Franken followed every single rule. He did what many candidates fail to do. He fought for the right of Minnesota voters to have their ballots counted and the right of all citizens of that state to have a Senator elected by a majority of the voters. Norm Coleman, the initial winner, chided Franken for taking the option of a mandatory recount. Franken didn't back down or complain. He simply followed the rules and will very likely be certified as winner and therefore U.S. Senator from Minnesota.
But Republicans are now talking about making up their own rules. They don't want Franken seated until the conclusion of an anticipated appeal of the election through an "election contest." Sen. John Cornyn (R-TX), head of the Republican Senate Campaign Committee, threatened "chaos" if the Democrats tried "to jam this issue through the Senate and seat a senator who has not been determined to be the winner of the election" StarTribune.com, Jan. 3, 2009.
Wait a minute! The canvassing board is the duly impaneled body that "determines" the "winner" of the election. Franken will most likely be certified Monday, Jan. 5. Coleman's term expired at noon Saturday, Jan. 3, 2009. Does this mean that any certified winner of a Senate race can be denied his seat by a legal challenge of the final decision?
It's absurd. Sen. Cornyn can object all he wants. The rules are clear. Franken should be seated if certified the winner, as anticipated. There is no valid precedent in any of the election contests in the past to deny him that seat (See Appendix B).
"Should a contest be brought against a senator-elect prior to his being sworn in, the chamber's custom has been to seat the individual contingent upon his credentials being in order. (10) Thus, the precedent has been that a senator-elect has a "prima facie" right to the seat, while the contest brought against him is being investigated. Moreover, the individual is considered seated "without prejudice" to himself or to the office. This pseudo-legal arrangement allows the Senate to remove the individual by a simple majority vote, should a subsequent investigation find him not to be entitled to the seat. Otherwise, the Senate's only course of action would be "expulsion," which would require a two-thirds majority (12)." Partisanship and Contested Election Cases in the Senate, 1789-2002, Jeffery A. Jenkins, Northwestern University. Studies in American Political Development, 19 (Spring 2005), 53-74, Cambridge University Press. (Author's emphasis)
This is outlined in a report by the Senate outlining the election contests to date.
If Coleman pursues a post certification election contest, the Minnesota canvassing board certification becomes "provisional" by state law indicating that a contest is under way. It may take three months to resolve the election contest. The citizens of Minnesota will be denied representation should the Senate refuse to seat the declared winner after certification.
Seat Roland Burris Now
Roland Burris, the former Illinois Attorney General and Comptroller, was selected by Governor Rod Blagojevich to fill the term of President elect Barrack Obama. The day after the governor's arrest, Illinois senior Senator, Richard Durbin (D-IL), appealed to Blagojevich to call for a special election rather than make an appointment to fill President-elect Obama's vacated Senate seat.
"Please understand that should you decide to ignore the request of the Senate Democratic Caucus and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.
"We do not prejudge the outcome of the criminal charges against you or question your constitutional right to contest those charges. But for the good of the Senate and our nation, we implore you to refrain from making an appointment to the Senate."
Signed by the entire Senate Democratic leadership and all members of the Democratic Caucus. Sen. Richard Durbin, (D-IL), Dec. 10, 2008
In the first paragraph above, Sen. Durbin says that the Democratic Caucus "would be forced to exercise its "Constitutional authority" to review the appointment. This is a reference to Article I, Section 5 above. The "Senate Democratic Caucus" has no authority under the United States Constitution. It isn't even mentioned. The Senate does have the authority to "be the Judge of the Elections, Returns and Qualifications of its own Members." But no Senator or group of Senators is "forced" to do this.
Doesn't this sound like an implied threat? 'We want a special election not an appointment by you, Rod. Go right ahead and we'll invoke that section of Article I, Section 5 on Qualifications.'
How would they proceed? Will they reject this fully qualified man as a United States Senator because the governor filling the vacancy, unlike all other citizens, is judged guilty as charged without the right to a trial by a jury of his peers. Gov. Blagojevich has been charged, not convicted. Is it is still possible to say this: the governor is innocent until proven guilty.
