Ken Blackwell

The outcome of the Minnesota election for the U.S. Senate between Senator Norm Coleman and acidic far-left comedian Al Franken is still being fought in court. Out of nearly 2.9 million votes cast, the candidates are within a few hundred votes of each other. First, Senator Coleman had the lead for reelection. Then recounts and challenges over various ballots ensued, and Al Franken took a razor-thin lead.

The election went to court over the recount procedures. A three-judge Minnesota court found in Mr. Franken’s favor, and in June the Minnesota Supreme Court will hear arguments from Senator Coleman. If Al Fraken prevails there, Senator Coleman’s only chance will be taking the matter into the federal court system.

There is a solid basis for federal litigation. Some of the Minnesota counties are employing differing standards on which ballots to count, and the election outcome could easily switch back to Senator Coleman’s favor if certain standards were applied uniformly statewide.

The use of different standards raises an issue under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. And because the right to vote is a fundamental right under constitutional law, any equal protection issues subjects the counties’ procedures to what is called “strict scrutiny,” an extremely rigorous and difficult standard for the government to satisfy. If the counties’ decisions do not meet strict scrutiny, they will be struck down as unconstitutional.

Should this case go all the way to the U.S. Supreme Court, the issue in the Coleman-Franken case is very similar to the issue that decided Bush vs. Gore in 2000, and with it the presidential election. It would be up to the Supreme Court as to whether to take the case, where Senator Coleman would then have a good chance of winning.

If Senator Coleman won in the U.S. Supreme Court, two outcomes are possible. First, the Court could order a statewide recount with uniformly consistent standards, which could well give the lead back to Senator Coleman. Or second, if ballots are lost or a perfect recount is otherwise impossible, a new election could be called. Should that happen, Senator Coleman may well prevail again.

So in the end, the decision as to whether there is a filibuster-proof majority in the U.S. Senate for President Obama’s Supreme Court (and lower court) nominees may rest with the Supreme Court. That’s ironic.

It cannot be overemphasized that Arlen Specter has not yet shown how he will respond to Barack Obama’s judicial nominees. He may yet surprise those on both the right and left by asserting a moderate voice, should President Obama nominate a strident liberal as many experts anticipate.

So now all eyes are on both Senator Specter and Minnesota, as the future of the American judiciary hangs in the balance.

Ken Blackwell

Ken Blackwell, a contributing editor at, is a senior fellow at the Family Research Council and the American Civil Rights Union and is on the board of the Becket Fund for Religious Liberty. He is the co-author of the bestseller The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency, on sale in bookstores everywhere..
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