For now, Minnesota’s U.S. Senate race is looking to set a record as the closest election in the history of that legislative body. A 355-vote margin in New Hampshire’s election in 1974 is the current record.
That one wound down to a truly memorable finish. After two recounts in New Hampshire and more than six months of deadlock at the U.S. Capitol, the Senate declared New Hampshire’s senate seat vacant on August 8, 1975. That was 276 days after the polls closed. Democratic challenger John Durkin and Republican incumbent Louis Wyman squared off again in a September re-vote.
But in the Watergate era, it proved extraordinarily difficult for the Republican incumbent. Wyman’s Democratic challenger, John Durkin, took the seat by 27,000 votes.
That’s not how it is likely to play out in Minnesota, though. How about this for a doomsday scenario?
The state has a vacancy law (204.D28) that deals with precisely such matters, and it has come into play several times. The first was in 1976, when U.S. Senator Walter Mondale was elected Jimmy Carter’s vice president. Gov. Wendell Anderson resigned and had his successor, Rudy Perpich, appoint him to the vacant seat. The political maneuvering effectively ended Anderson’s political career. The second case was in 2002, when Senator Paul Wellstone was killed in a plane crash and Gov. Jesse Ventura appointed Dean Barkley to the Senate.
Here’s the relevant part, though: If a recount of this year’s election stretches into January, either the state courts or the U.S. Senate (which is the ultimate arbiter of the election of its members) could declare Minnesota to have a vacant senate seat. That would trigger the state’s vacancy law, which allows the governor to appoint a senator.
The law makes a crucial point here: “An appointee shall hold office until a successor is elected and qualified at a special election or until a successor is elected.” That means that come January 3rd, 2009, if the matter still hasn’t been settled and the election’s victor declared, Republican Gov. Tim Pawlenty will be theoretically able to appoint a U.S. Senator (likely a Republican) who will serve at least until Nov. 3, 2009, when another election is held and a winner “qualified.” Which is to say he or she gets a result certified by the state canvassing board and the seven day contest period expires.
According to Ramsey County elections manager Joe Mansky, who long served in the Secretary of State’s office, that would make for a term of office ending Nov. 25, 2009. That would make for a 325 day senate term — presuming Pawlenty doesn’t appoint incumbent Norm Coleman.
And here’s where the real trouble comes. If, say, the Republicans successfully argue to a state judge on January 3 (or shortly after) that the undecided election amounts to a vacancy in the office, they could effectively nullify this week’s election. Minnesota’s vacancy law doesn’t have a look-back provision. Even if the election were subsequently settled, the law doesn’t apply a past election to a vacancy that has already been filled. Filling the vacancy would automatically trigger a do-over in the next November.
Presumably, that would only occur if it looked like Coleman were trailing or in a bad legal position.
And state law wouldn’t stop Al Franken from going to Washington, D.C., telling the secretary of the Senate that he is the real victor and asking the Senate to seat him, without an election certificate. That would presumably spark a debate in the U.S. Senate over whether the seat is vacant and touch off Lord only knows what kind of a political struggle between Washington D.C. and St. Paul.
In short: even a recount might theoretically leave this year’s Senate race unfinished.