Everything in Congress hangs on 60 votes in the Senate. Right now, the Democrats have 57 Senators plus Joe Lieberman. They could get one more if the Minnesota recount in the contest between Al Franken and Norm Coleman is decided in their favor. It is beginning to appear that the Democrats are settling on a strategy of attempting to seat Franken after the state courts decide, regardless of where the underlying issues stand.
For example, check out this quote from Chuck Schumer in The Hill:
"We believe the law of Minnesota requires a candidate to be certified after all the state appeals are through, whether someone applies to the federal court or not," said Democratic Conference Vice Chairman Charles Schumer (D-N.Y.).
While Republicans are talking about this going to the Supreme Court, Democrats are playing that down. On Friday, Richard Hasen, who normally writes the excellent and critical Election Law Blog, argued at the blog of the American Constitution Society that SCOTUS wouldn’t be likely to take the case. At dinner on Saturday night with a bunch of Democratic staffers and operatives, they all sang from this playbook.
This strategy seems calculated to avoid the hard question in this case.
Does the law allow not counting one vote when others just like it were counted by other counties and cities? Should a person’s vote count depending solely on where he or she lives? Should a contest court disallow votes based on counting rules it adopts but which no Minnesota county or city used on Election Day? Is it right to disallow a vote because the Minnesota Secretary of State’s database wasn’t up-to-date about whether the absentee voter or their witness were really registered?
If the Democrats move forward on trying to seat Franken before the whole process winds down, they will be, in essence, short-circuiting the judgement of the court with "yes" answers to all these questions. Ultimately, the fundamental question that Democratic Senators will be voting that votes don’t have to be treated the same everywhere.
They will be asserting that these kinds of facts should have no impact:
These voters remain disenfranchised because the Court changed the rules of the game on Friday, February 13th – long after the Election Day votes had been counted. Two and a half weeks into the trial and again yesterday, the court announced it would apply a “strict compliance” standard to judging the 11,000 unopened absentee ballots. That stands in contrast to the evidence at trial which showed that on Election Day, Minnesota’s counties and cities permitted ballots that “substantially complied” with the state’s laws to be counted. Altering the Election Day standard meant that thousands of ballots that would have been allowed on Election Day in most counties are now disallowed by the contest court.