Subverting the Constitution for a Senate Race?

Even after the recount in the Minnesota Senate race is complete, we may not know who officially won.

Al Franken is claiming that absentee ballots that were rejected because they weren’t in compliance with state law should be counted anyway, which poses a direct threat to the orderly application of state election laws. Unfortunately, we can probably expect litigation over that issue and the possibility of further court interference in our election procedures.

More troubling, though, is Senate Majority Leader Harry Reid’s remark that the Minnesota Board of Canvassers’ decision to not count the absentee ballots is “a cause for great concern.” If Franken ultimately loses, will Reid refuse to recognize the results of the election or to seat Norm Coleman, a clear abuse of power to achieve political ends? Franken’s lawyer, Marc Elias, has said he would seek Senate intervention if “there is no remedy before the canvassing board or before the courts.”

Such behavior wouldn’t be unprecedented. It has happened before — to the detriment of a Republican candidate, the shame of the Senate, and the subversion of the Constitution.

In 1974, New Hampshire had an election as close as the Coleman-Franken race. Former Republican Rep. Louis Wyman won the Senate seat by only 355 votes over his Democratic opponent, John Durkin. Durkin requested that the secretary of state recount more than 32,000 contested ballots, many of which had been challenged for insubstantial reasons, such as a checkmark being made by the voter instead of an “X.” The recount gave Durkin the victory with only a 10-vote margin.

Wyman appealed to the state Ballot Law Commission and requested another recount. With staff from the Senate Rules Committee carefully monitoring its actions, the Ballot Law Commission conducted a recount that thoroughly reviewed and extensively checked all of the contested ballots, finding numerous errors from the previous recount. The commission determined that Wyman had won by two votes — and a three-judge federal court rejected Durkin’s challenge to the constitutionality of the commission’s procedures.

Durkin then did what Franken is threatening to do: He appealed to the Senate (handing his petition to Democratic Whip Robert Byrd, in fact). The Senate Rules Committee spent months attempting to recount the ballots and refused to seat Wyman despite New Hampshire’s certification of his win. The Senate seat stood vacant for nine months until New Hampshire decided to hold a special election in which the two candidates faced each other again. This time, Durkin won.

The Constitution specifies under Article I, Section 5, that each house of Congress “shall be the Judge of the Elections, Returns and Qualifications of its own Members.” However, that power should not be used by a majority for political purposes to override the electoral choices of voters. It should be exercised only in situations where states grossly abuse their right to conduct elections under federal law (such as intentional racial discrimination). Article I, Section 4 gives states the authority to prescribe the “Times, Places and Manner of holding Elections for Senators” unless Congress has altered such laws or regulations. Congress has made no laws regarding absentee ballots other than the Uniformed and Overseas Citizens Absentee Voting Act, the federal law governing voting by overseas civilians and military personnel. That law is not at issue in Minnesota.

For the Senate to use its power to supersede Minnesota’s constitutionally authorized rules governing absentee ballots to assure that the majority party candidate wins would be the ultimate abuse of power. It would suppress the political rights of the minority party (and disregard the choices of voters). Unless there is evidence of voter fraud or that election officials violated the law in a manner that could have affected the outcome of the election, the Senate has no business interfering in Minnesota’s election process or disputing the state’s certification of the winner.

James Madison called the ability of Congress to regulate the qualifications of its members a “dangerous power” — one that that could be “devised by the stronger in order to keep out partisans of a weaker faction.” Such behavior by the legislature, he said, “can by degrees subvert the Constitution.”

Our Constitution is one of the greatest governing documents ever been devised by man, and it has served us well for more than 200 years. Let’s hope that Harry Reid and his compatriots are not tempted to subvert that governing document — and create a precedent that could come back to haunt either party — to gain a political advantage in a single Senate race.

Hans A. von Spakovsky is a visiting legal scholar at The Heritage Foundation. He is a former member of the Federal Election Commission and a Justice Department official.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and former Justice Department official. He is coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.