The Curse: Law and Politics of Senate Vacancies in Minnesota

The Minnesota Senate seat held by Al Franken appears to be cursed.
With his resignation over sexual harassment allegations and Governor Dayton soon to announce his replacement, the seat held by Franken continues its troubled history, both legally and politically.

The 1978 Elections
The stored history of the seat goes back to 1976.  Then Senator Walter Mondale, tapped to be with Jimmy Carters running mate, resigns to become vice-president of the United States.  With the senate seat open, then Governor Wendell Anderson resigns, his Lieutenant Governor Rudy Perpich  becomes governor, and then names the former as senator.  This apparent quid pro quo looked sufficiently bad enough that voters in Minnesota threw out all the major Democrats (Dflers) in the state, replacing them with Republicans in 1978.  Wendell Anderson was replaced with Rudy Boschwitz.  Muriel Humphrey, who replaced her husband Hubert when he died in 1978, was replaced by Republican David Durenberger, and Governor Perpich was defeated by Republican Al Quie.  The DFL also lost control of the state legislature.
Voters were so angry about the way Anderson apparently acted to make himself governor that the law regarding filling of US Senate vacancies was changed, codified now in Minnesota Statutes  §204D.28.  It allows for the governor to appoint to fill a temporary vacancy (Subd. 11.) until a special election can be held at the next regular election in November (Subd. 6) (except in cases where the vacancy occurs close to another election), with the winner then serving out the remainder of the regular term.

1990 Elections
Boschwitz served two terms, losing to Paul Wellstone in 1990.  The 1990 election was odd for several reasons.   There was a gubernatorial election that year pitting incumbent Rudy Perpich (who won back his seat in 1982) against Republican State Auditor Arne Carlson.  Originally the GOP had nominated John Grunseth as their candidate but several weeks before the election stories regarding sexual improprieties against him emerged, and there was pressure for him to quit.  Pressure came from Boscwwitz who offered to pay his expenses to quit.  Such an offer was illegal under state law and when later Grunseth sued in court for a breach of contract the suit was dismissed.  A legal battle then ensued by Democrats over replacing Grunseth with Carlson as the GOP nomination, culminating in a Minnesota Supreme Court decision allowing for that to occur.  Carlson went on to win the election.
At the same time Wellstone, outspent by more than 6:1 by Boschwitz, beats the latter to win the Senate seat.  In part Wellstone’s victory was attributed to a letter Boschwitz ( who was Jewish) sent out to the Jewish community accusing Wellstone (also Jewish) of not being a good Jew.  The letter was written by two of Mr. Boschwitz's Jewish supporters and signed by them and 70 others, and it was printed on Boschwitz campaign stationery and mailed at campaign expense on November 1, 1990, just days before the election.

2002 Election
Wellstone served in the senate for two terms, and then was running for a third term in 2002 when on October 25,  less than two weeks before the election, he died in a plane crash.    At that point in a race against Republican Norm Coleman more than 25,000 absentee ballots had already been cast.  In a special DFL Executive Committee meeting former Minnesota Senator Walter Mondale was picked to replace Wellstone.  Democrats wanted absentee votes cast for Wellstone automatically transferred to Mondale or in the alternative, the absentee ballots thrown out.   State law did not appear to allow for absentee voters to request a new ballot to vote A major legal battle ensued where eventually in Erlandson v. Kiffmeyer, 659 N.W. 2d 724 (2003), the Minnesota Supreme Court allowed for voters to request new ballots if they had already voted.
In addition, the Mondale-Coleman race was also marred by another controversy.  Just days before the election there was a televised memorial service for Wellstone which attracted national celebrities to pay their respects.  It was supposed to be a non-partisan event but when it turned partisan (at least this was the impression by some) through a speech by Rick Kahn (a friend of Wellstone’s) who more than a dozen times said let’s "win this election for Paul Wellstone."  Governor Jesse Ventura  walked out in disgust, the media and the public came to view the service as a political pep rally, and that shifted the momentum to Norm Coleman who won the election.  On November 4, Governor Ventura named Dean Barkley senator until Coleman was sworn in.

2008 Election
In 2008 Coleman was running for re-election, challenged by Al Franken who returned to the state to run for election.  It was an expensive election, culminating in what appeared to be less than a 1,000 vote victory for Coleman on election day.  After the Canvassing Board meet it declared Coleman the victor by a 206 margin.  A mandatory recount took place resulting in fights over absentee ballots.  Specifically, during the recount, local election officials and the candidates reviewed the absentee ballot return envelopes that had been rejected on or before election day and agreed that some of them had been improperly rejected.
On January 3, 2009, the Secretary of State's Office opened and counted the 933 ballots identified during this process. On January 5, 2009, the State Canvassing Board certified the results of the election as 1,212,431 votes for Franken and 1,212,206 votes for Coleman, a margin of 225.  Coleman sued and eventually in Coleman v. Franken, 767 N.W.2d 453 (Minn. 2009), the Minnesota Supreme Court ruled for Franken and on July 7, 2009–after the seat had been vacant for more than six months–he was seated.

2017 and Beyond
And now it appears that Franken is resigning, kicking in Minnesota Statutes  §204D.28, allowing Governor Dayton (DFL) to replace Franken.  There is a lot of speculation surrounding who it will be but assume as one choice that it will be his Lieutenant-Governor Tina Smith (although there are many other possible picks to replace Franken).  If so, this means there will be a vacancy in that position.  Article V, section 5 declares that: “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.”  That would make it Senator Michelle L. Fischbach (GOP)  who would become Lieutenant-Governor, creating a vacancy in her position and necessitating a special election for her senate seat under Article IV, Section 4, of the Constitution. 
Why is all this important?  Until recently the GOP held a one vote majority (34-33) in the Minnesota Senate.  But effective December 15, 2017, DFL Dan Schoen will resign, coincidently also because of sexual harassment allegations.  Assume that the DFL will hold his seat (which is not guaranteed but possible with him having won 53.13% in 2016) and that the DFL picks up Fischbach’s seat (not likely since she won with 68.6% in 2016 in a strong Republican area), the DFL could then flip party control of the Minnesota Senate in DFL Governor Mark Dayton’s last year in office.

Three Myths: Election Fraud, Big Foot, and the Loch Ness Monster.

Yet again voter photo ID is rearing its head in Minnesota, and still there is no good reason to have it. On January 13, HF0089 was introduced by a host of Republican authors in the Minnesota House of Representatives. The bill would require the presentation of a voter picture identification before receiving a ballot. The bill is popular with the GOP and with voters in general, but it is probably destined for a Dayton veto if sent to his desk.

Voter ID is one of the stupid public policies that I often rail about. Its apparent need is grounded in political myth. The myth is that there are significant numbers of illegal voters or voters–including felons, immigrants, and other undesireables–who are affecting the outcome of elections. Were they prevented from voting, and only real Americans could vote, then perhaps Democrats would not win close races, Franken and Dayton would not be in office, and Coleman and Emmer would be senator and governor. Thus, the reason why Franken and Dayton won in close races is simple–voter fraud or election official incompetence.

I am not going to devote an entire article to yet again discussing the myth of voter fraud. I have done previous blogs on it and have written a couple of articles questioning evidence for its existence. But a few simply points are appropriate. Let me do that I terms of a Q & A.

Q: Voter ID at the polls is needed to prevent fraud.
A: No one will argue that there is no fraud in the election process. No system is 100% perfect. Mistakes are made but mistakes are not the same thing as fraud. In general, the studies on voter fraud indicate that it is minuscule and that there is no evidence that it is widespread enough to have altered the outcome of an election in Minnesota or perhaps anywhere else. When one actually examines the incidence of alleged fraud–felons voting when they should not–the total potential fraud is often .00000N of all votes cast. The reality is that the amount of alleged fraud is far less than the winning margins by Franken and Coleman.

Q: But has not the Minnesota Majority done studies to show fraud exists?
A: Sure they have done studies but they are not worth the paper they are printed on. Methodologically they are sloppy and they make all kinds of claims about double voting, etc. However once investigated by country attorneys and others the numbers and their claims evaporate. I remember a few instances where they claimed a person at one address had double voted. It turned out that a father and son with the same name lived at the same address. It is this type of sloppiness that they engage in when the do their studies.

Q: Ok but voter fraud is hard to detect. Just because only a few cases of fraud are revealed shows how hard it is to detect. Election fraud is like littering (according to Judge Posner) or speeding. More cars speed than receive tickets. Actual tickets issued are only a small fraction of total fraud.
A: the analogy to vehicular speeding is inapt. Speeding in a car is a continuous 24/7 activity that can occur anytime and anywhere. (The same is true about littering) There is no single detection point or place where people can speed and therefore with the almost infinite amount of cars driving along almost infinite roads, it is virtually impossible to detect all instances of speeding. Thus, the few speed traps that are set up obviously only detect and capture a small spectrum of all speeding.

However, voting or voter fraud is a discrete activity. It can only occur at a specific point in time or place and in order to commit fraud one has to commit it by going through specific point–a voting booth. Thus, all instances of fraud must go through and exit a single detection point. To be successful, in person fraud requires either a false registration, false signature, and tricking an election judge. The point is that to commit voter fraud one has to get past multiple detection points or check points. One can speed without every crossing a detection point (speed trap).

The point here is that the analogy of voter fraud to speeding or littering is inapt. One can speed or litter almost anytime or anyplace. This is what detection hard. The few instances detected and prosecuted are perhaps only a small sample of a larger pattern of speeding and littering that may exist. In addition, beyond detection and prosecution, other evidence, such as police using radar guns to detect speeders but not issue a ticket, or anecdotal statements from drivers that they speed, may corroborate inferences that it is more prevalent than prosecution may suggest. With littering, proof can be found along roadsides and fields across America–the fact that there are cans, papers, and other refuse there points either to the contests of garbage cans being knocked over or intentional littering.

One can only vote in person in a finite number of places and within a finite time. To vote, especially in person, there are several steps and checkpoints in place. There is in 42 states voter registration before election day. This is one check. For all 50 states, in-person voting requires someone to show up, give a name to an election judge and generally sign a log with which there is a signature match. There may be other requirements too. What this means is that one has to go to a specific place to commit fraud and cross past numerous detection or check points before one can actually submit a fraudulent ballot. One does not simply have to speed past a law enforcement officer to violate a motor vehicle law.

Thus, the analogy to speeding or littering is inapt. Lacking more proof that fraud exists, we cannot infer that it is more widespread than it is. Instead, we might be able to easily infer and argue that the few cases that occur demonstrate how well our election system works and how we are able to detect and root it out.

Q: But if we had photo ID we could prevent fraud?
A: If little fraud already exists, then how can we deter what does not exist? Moreover, there is a powerful circular logic to supporters of photo ID. They argue that the ID is need to detect fraud. But in jurisdictions where the ID has been adopted no increase or report of fraud has been documented. Supporters then make a second claim–photo ID deters fraud. You cannot simultaneously argue that the use of an ID will make detection easier and at the same time claim it will deter fraud. Such a pair of arguments are empirically untestable. Thus supporters must rely on faith and not evidence to support their views.

Q: But what is the big deal about the ID? One needs an ID for just about anything in society, including cashing a check or renting a car.
A: Cashing checks and renting cars are not constitutionally protected rights. Voting is a constitutionally protected right. It needs to be examined not in terms of what is a normal societal or commercial practice but in terms of a constitutional right. Society may require a merchant to go door-to-door to sell products but the First Amendment correctly states that groups such as the Mormons and the Jehovah Witnesses do not need a permit to go door-to-door to proselytize.


Q: Photo ID is supported by large majorities of the population. That is reason enough to enact it–majority rule.
A: Yes, we do live in a country based on majority rule, but our Constitution and Bill of Rights say that it is majority rule tempered by minority rights. There are many things that majorities may want to do. They may not like the religion of some sect, the speech of some critic, or the color of someone's skin. But these are not reasons to allow a majority to have its way.

Justice Jackson in West Virginia v. Barnette said it best: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Q: But voter ID is needed to restore faith in the election process. Belief in voter fraud is deterring voting.
A: There is no evidence for this. Some statistical analysis has been done and found no evidence that a belief in voter fraud is depressing the public from voting.

Q: So if there is no real good reason for pushing voter ID, why does the GOP keep advocating it?
A: It is a great wedge issue. It divides the electorate. In addition, it provides comfort and explanation to why they lose close elections, especially in Minnesota. It is also a cynical way to engage their political base and fund raise. The reality is that there is no real good reason for photo ID, but it sounds politically good and it offers a narrative that appeals to many.

Election Day Registration: Debunking the Myth of Voter Fraud

Voter turnout is again an issue with the coming 2010 elections. With midterm elections producing turnouts dramatically lower than in presidential election years, some argue for election day registration (EDR).

Advocates for this point out that seven states–Idaho, Iowa, Maine, Minnesota, New Hampshire, Wisconsin, and Wyoming–permit EDR, with North Dakota not even requiring registration.

EDR critics raise the specter of voter fraud, contending that it would affect election outcomes. Even though there is no evidence that voter fraud is rampant or has changed the outcome of any election in a EDR state, claims persist.
The most recent salvo trumpeting the myth of voter fraud is a July Minnesota Majority report. They allege that illegal felon voting may have cost Norm Coleman to lose his senate seat to Al Franken. The Minnesota Majority argues that 1,400 felons may have voted illegally in the 2008 Minnesota elections and they have forwarded these names on to county attorneys for investigation. Republican Governor Tim Pawlenty commented on this report, echoing that illegal felon voting may account for Franken’s 312 voter victory over Coleman.

Does the Minnesota Majority report stand up to scrutiny? Hardly.

First, think about who makes up the Minnesota Majority. They are an ultra-conservative partisan political group that is a pro-property rights, pro-gun, anti-choice, anti gay, anti-immigrant, anti-sex education, and global warming denying organization. They are hardly politically neutral. They have repeatedly made unsubstantiated accusations about voter fraud in Minnesota, only to have their claims dismissed when critically examined.

Second, their initial July numbers asserting illegal ex-felon voting have been reduced based upon preliminary review by voting officials and county attorneys. That initial 1,400 has been whittled down to a few hundred–hardly enough to change the outcome of the race. Second, the Minnesota Majority did not investigate or examine whether any of the alleged voting occurred as a result of ex-felons who had their voting rights restored. Ex-felons in Minnesota are eligible to have voting rights restored upon leaving prison and that may have occurred here.

Third, the Minnesota Majority makes the assumption that any illegal voting that occurred favored Franken over Coleman. Why or how can one assume this? The political science literature indicates that, in general, people who are more affluent and better educated are more likely to vote than the poor and less well educated. Immediately this raises a series of questions regarding who exactly are the ex-felons that supposedly voted? Clearly the Minnesota Majority assumes that these individuals are more poor, uneducated, and therefore more liberal and thus voted for Franken over Coleman. Yet voting studies research suggests that this demographic is much less likely to vote.

Instead, think about who the felon voters might have been. Perhaps the most famous felon in Minnesota right now is Tom Petters–a middle aged affluent white male convicted of multiple counts of mail and wire fraud connected to a $3.5 billion Ponzi scheme he ran. He is a felon and, assuming he could vote, would he have voted for Franken? Probably not.

Moreover, think about all the other Wall Street felons from around the country–Jeffrey Skilling and Kenneth Lay of Enron, or Bernie Ebbers from Worldcom–if they could have voted in Minnesota in 2008 would they have voted for Franken? No. The odds are they would have voted for Coleman. Felons include white-collar criminals, drunk drivers, wife beaters, and middle class cocaine users. None of them fit the bill of those voting for Franken. We do not know the mix of the felons who allegedly voted in 2008. It is equally possible that if they voted they did so for Coleman, making the race even closer than it should have been.

Finally, the percentage of the vote of among illegal voters had to unrealistically favor Franken as opposed to Coleman to overcome the 312 vote victory. The Minnesota Majority states that perhaps up to 1,000 cases are possible for prosecution (although county attorneys have already cut this figure to one-third, and more, if not all will be dismissed). To overcome the 312 margin of victory, one would have to assume that of this 1,000, at least 656 votes went for Franken. In a race where Franken only received 43% of the popular vote, to assume he received nearly 2/3 of this vote is speculative.

Overall, keep in mind that county attorneys have not indicted anyone and no one has been convicted on voter fraud. The assertions of the Minnesota Majority are simply that, just unsubstantiated partisan assertions made by a group that is committed to the belief that if it denies enough people the right to vote they can successfully secure their agenda.

One Convention Down, One to Go

The Postmortem on the DFL Convention

With the Minnesota DFL (Democratic) convention done but the nomination far from a done deal, it is time to offer a few thoughts on it.

As suggested in the last blog the convention was a brokered one. It was brokered in the sense that the first vote did not produce a nominee and instead, one had to look to the minor candidates to see where they asked their delegates and supporters to go. Perhaps the critical point in the convention came with John Marty asked his delegates to support Kelliher in exchange for her commitment to push for single payer health care within two years of being elected. His switch, along with Rukavina’s, seemed critical to bringing the endorsement over to the Speaker. What resulted then was that the Convention was an insider’s event that favored established party players such as Kelliher over outsiders such as Rybak. As described last week, the battle between Rybak and Kelliher was a replay of Obama and Clinton, only this time the battleground favored the inside player and not the outsider.

But the convention may be meaningless. Ultimately, the August 10, primary is critical. Here Anderson faces the big money and name recognition of Mark Dayton and Matt Entenza. DFL convention-endorsed candidates have a mixed record of success in primaries, and the same will be true again this year. An early primary when fewer individuals are paying attention, the role of big money, the inability of Kelliher to raise much money compared to Dayton and Entenza, and the remaining days of the legislative session may all make life difficult for Kelliher.

Previewing the MN Republican Convention

Now the Minnesota Republicans take the stage. They have a choice between Tom Emmer and Marty Seifert. Both candidates have pledged to honor the convention endorsement, meaning that by the beginning of May the GOP can unite behind one candidate, raise money, hone a message, and narrative, and wait for the DFL to hold a primary. All of these factors give the Republicans significant advantages over the DFL candidate.

But more importantly, one looks to see what the GOP will do to Kelliher in the remaining weeks of the Minnesota Legislative session. As speaker, Kelliher is both the face of the legislature and of the DFL. In the last couple of years the GOP and Governor Pawlenty have made life difficult for her and she has not done well with negotiations on the budget. Pawlenty’s $2.7 unallotment in 2009 was in part a result of the governor outmaneuvering Kelliher. Look to see little cooperation among the GOP and governor between now and the end of the session. There are many incentives for Pawlenty not to cooperate with the DFL, painting Kelliher into a box that makes her look weak and ineffective. Kelliher wants to run on the theme of leadership. Look to see the GOP try to make her look weak and not like a leader.

The real question now is how hard should the Republicans go after her. The GOP really wants her as the candidate to face in November as it will be easy to blame her, the leader of the legislature, for all types of problems. Should the Republicans go after her now and bring her down by August 10, and thereby face the prospect of a stronger candidate, or hold off until after then, hope she wins the primary, and then go after her? My guess is they will make life hard for her in the remaining weeks of the session but then hope she survives August 10.

One lesson the Republicans should have learned from the attacks on Franken in 2008: Don’t unleash the attacks too soon otherwise by the time of the general election the voters will not care any more. In 2008 Coleman slung the mud early and by October there was nothing left to say. The impact of the early attacks wore off, Franken had time to respond, and then he made an effective counterattack that was fresh.