Whose Gopher is Being Gored?

By John Kelly

In his defense of judicial review, the notable constitutional conservative Alexander Bickel referred to the judiciary as “The Least Dangerous Branch”—in fact, this served as the title for his book. He recognized that in our tripartite system government, with three branches vying for power, certain institutional safeguards insulate the courts from the more obvious political pressures that plague the other two branches.

On the other hand, dating all the way back to our Founding, the Framers had a particular mistrust of the Legislative branch and instituted the strictures of “separation of powers” and “checks and balances” as a way to avoid excessive concentrations of powers in that branch. As it turns out, their suspicions were well founded; the current imbroglio in “The Gopher State” providing a ready case in point.

When the initial ballot count in Minnesota’s Senate race ended in a statistical deadlock, a provision of that State’s law triggered an automatic recount. Before the recount, the incumbent Republican Senator, Norm Coleman, held a slim lead but following the count, the Democratic challenger, Al Franken, was on top by an equally narrow margin. Given the high likelihood that any irregularities—even completely innocent ones—could have accounted for the mere difference of 225 votes following the recount, Mr. Coleman sought review in a state court, according to procedures expressly provided for in the Minnesota statutes.

While the judicial proceedings were ongoing, Senate Majority Leader Harry Reid indicated that Senate Democrats would attempt to have Mr. Franken seated and Franken himself sought an order by the Minnesota Supreme Court certifying him as the winner so that he could take up the seat. Unfortunately for him, a statute expressly states that a winner cannot be certified until all judicial challenges have been exhausted or waived.

This brings us to the present, where last week, the parties concluded arguments in the trial proceedings and now await a decision from the special three-judge panel. But suddenly, while judicial process was convenient when Mr. Franken was seeking to have the courts to declare him the winner, he and his Democratic cohorts are once again calling for the GOP to give up its challenges so that Minnesota may have representation—never mind if it’s by the certified winner, they say.

It seems that 58 votes are not enough for Senator Reid to advance his costly stimulus bill and other spending packages in their full, fiscally irresponsible form. He really needs that additional vote to do so. Unfortunately for Mr. Franken and the Senate Democrats, the Minnesota statute could not be more clear: it forbade certification of a winner until conclusion of the judicial process. And Mr. Coleman would be wise to seek every appeal necessary, discretionary or otherwise, to ensure that the results are correct.

The irony here is quite sweet. Ever since the 2000 election, liberals have been extremely critical of courts declaring the winner outright, as the Supreme Court did in Bush v. Gore. However, this is precisely what Mr. Franken attempted to have the courts do. The wiser course, or rather the one everyone would agree on when opportunistic motivations are not in play, is to allow the politically insulated judiciary to carefully review all of the contested ballots and render legally supported judgments on their validity. Instead, we have precisely the situation the Framer’s feared: Members of the senate majority trying to increase their ranks by fiat and other political actors using partisan pressures to try to determine the outcome of an election.

When the Supreme Court acted expeditiously to seat a president in 2000, Democrats raucously cried foul. Now, when we have the judiciary serving its careful, deliberative, and justice-seeking role, the Minnesota Senate race cannot end soon enough for the Democrats. One cannot help but wonder: is it really that they want a fair outcome – or just a favorable result? Guess that depends on whose gopher is being gored.

John Kelly is a Contributing Writer for ALG News Bureau.