Can Joe Miller Win?

To recap briefly, Joe Miller successfully challenged incumbent Senator Lisa Murkowski in the 2010 Republican primary for a U.S. Senate seat from Alaska.  Murkowski then launched a write-in campaign for the general election, and it appears that there were many more write-ins than votes cast for Miller (or for the Democratic nominee, who has conceded).  Alaska is now going through the process of determining for whom the write-ins were cast, though it is presumed that the overwhelming majority were intended to be for Murkowski. 

            For present purposes, we will assume that the number of write-in votes cast for “Lisa Murkowski,” or some reasonable variant thereof, will clearly exceed the number of votes cast for Miller.  Miller contends, however, that the state can legally count only those ballots that correctly reflect the spelling of Murkowski’s name.  He has brought a civil suit seeking to enjoin the state from counting misspelled ballots.   

            Miller may be correct about Alaska law, and it is possible (though unlikely) that he will be able to get enough write-in ballots thrown out so as to be certified the winner of the election.  That, however, is not the end of the matter.  Murkowski will still have the option (which she would almost certainly exercise) to contest Miller’s election in the U.S. Senate.  And the odds are very good that she would prevail in such a contest. 

             To begin with, the Senate enjoys a good deal of flexibility in how it handles an election contest, having established no fixed or formal procedures as exist in the House.  As one commentator notes, “the relatively informal nature of the process results in contestants having wide discretion to bring a case and the Senate having a wide discretion as to how it will handle such a contest.” 

            Moreover, Murkowski has at least one closely analogous Senate precedent that she could cite in support of her challenge.  In a 1924 U.S. Senate race in Iowa between Daniel Steck and Smith Brookhart, Brookhart was certified as the winner by 755 votes.  Steck, however, contested the election on the grounds that Iowa had rejected so-called “arrow ballots,” in which voters had marked Steck’s name but had drawn in an arrow (mimicking a sample ballot they had received); this marking required the disqualification of the ballot under Iowa law.  The contest was referred to a Senate committee, which decided to count those “arrow ballots” which clearly indicated an intent to vote for Steck, notwithstanding the Iowa law.  Although Brookhart’s supporters objected that “no precedent existed for the Senate to overrule a state’s election law” in this fashion, Steck’s supporters argued that “Iowa voters’ preferences, when clearly conveyed on their ballots should be honored, lest their voting rights be denied.”  Ultimately, the Senate decided to count the arrow ballots and seat Steck. 

            Murkowski’s position would be further bolstered by the political realities.  The Democratic majority in the Senate has no incentive to seat Miller, and it would have every reason to take a Murkowski challenge seriously (thereby prolonging a Republican internal battle).  It is reasonable to assume that some Senate Republicans would also be sympathetic to Murkowski, a former colleague who has indicated she would continue to caucus with the Republicans.  Finally, most Senators are likely to be uncomfortable with disregarding the apparent will of the voters, regardless of the legal niceties. 

            In short, even if Miller prevails on his claims under Alaskan law and is certified the winner of the election, he is likely to lose the Senate seat in the long run.

Recall of U.S. Senators

           At the Volokh Conspiracy, Eugene Volokh has an interesting post about an effort in New Jersey to recall Senator Robert Menendez.  Apparently the New Jersey Constitution expressly allows recalls of federal legislators, but the N.J. Secretary of State is refusing to allow a petition for such a recall on the grounds that the U.S. Constitution does not permit them.  The question is now set for a hearing before a New Jersey state court. 

            As suggested by Professor Volokh, this CRS report, and a separate post by Todd Zwicki, it seems fairly clear that the Constitution, in contrast to the Articles of Confederation, did not authorize state legislatures to recall their state’s representatives, although the state legislatures did issue “instructions” to their Senators.  Nothing in the Seventeenth Amendment expressly authorizes such recalls, and it is hard to think of a reason to read the amendment as implicitly authorizing voters to recall their Senators.   

            Nevertheless, there are a couple of interesting questions presented by this case.  First, who should make the decision as to whether the recall is unconstitutional?  The Constitution makes each House the judge of the elections, qualifications and returns of its Members.  Therefore, it would be up to the Senate, at least in the first instance, to determine the effect of any recall vote by New Jersey.  One might argue, therefore, that the petition drive should be allowed to go forward, on the theory that it is not up to state officials or state courts to determine the effect of the vote. 

            The counterargument would be that state officials and state courts are bound by oath or affirmation to support the Constitution (under Article VI) and cannot authorize actions that violate it.  This is presumably true if holding the recall vote would itself violate the Constitution.  But Volokh suggests that an advisory recall vote (i.e., essentially a request by the voters that the Senator resign) would be constitutional.  Therefore, New Jersey could, and arguably should, allow the recall vote to go forward on the grounds that, assuming it is constitutionally ineffective as a mandatory recall, it is constitutionally valid as an advisory recall. 

            I don’t think that the constitutionality of a hypothetical advisory recall is quite the issue, though.  The key point is that holding the recall vote, even though it purports to be mandatory, doesn’t actually do anything.  It is only if the result of a successful recall vote is presented to the Senate that the constitutional question arises.  If the Senate judges that the recalled Senator is still entitled to his seat (as it almost certainly would), it cannot be said that the recall vote has violated the Constitution.  Put another way, the Constitution does not prohibit recall votes; it simply doesn’t give them any legal effect.  

            I am persuaded by this analysis that state officials are not constitutionally obligated to block the recall vote simply because they believe that it will have no constitutional effect.  But this doesn’t necessarily mean that they are obligated to let the vote go forward, either.  Ultimately, the question of whether the recall vote should go forward would seem to be one of state, not federal, law.

Can Senator-Elect Brown be Seated Immediately?

            It may be recalled that during the controversy over the appointment of then Senator-designate Burris, one of the points of contention was whether the Senate required a certificate of appointment signed by the Illinois Secretary of State in order to seat Burris.  Senators Reid and Durbin maintained that Senate rules required such a certificate before Burris could be seated.  The Illinois Supreme Court, however, was unimpressed by this contention, noting that “no explanation has been given as to how any rule of the Senate, whether it be formal or merely a matter of tradition, could supercede the authority to fill vacancies conferred on the states by the federal constitution.” 

            A somewhat analogous issue is now presented with regard to the Massachusetts special election.  The election has concluded and Senator Reid has stated that Scott Brown will be seated “as soon as the proper paperwork has been received.”  This suggests that Brown will not be seated until a certificate is issued, which apparently cannot occur for at least another 10 days under Massachusetts law. 

            It should be noted, however, that Senate precedent permits Senators-elect to be seated prior to the issuance of credentials under certain circumstances.  According to Riddick’s Senate Procedure, “in cases where no question was raised concerning the election of a Senator, the Senate by unanimous consent on various occasions has administered the oath of office to such Senators-elect, prior to the receipt of their credentials.”   In one of these cases the Senator-elect was seated “on the basis of an authenticated statement prepared by the Secretary of State of the said State showing that the Senator had received a majority of the votes cast for that office but since under State law the canvassing board could not meet until a subsequent date, a formal certificate of election could not be issued.” 

            This suggests that the Senate could, by unanimous consent, allow Senator-elect Brown to be seated immediately, given that there is no controversy over his election and his opponent has conceded.  It may be argued that this option is a matter of legislative grace and that Brown has no “right” to be seated immediately.  If, however, one assumes that the Senate intends to allow Paul Kirk to serve until his successor is sworn in (a decision which itself is questionable under Senate precedent), it would seem to be particularly problematic for the Senate to delay Brown’s seating without any apparent justification. 

New York 23rd Looking to Extend its Fifteen Minutes of Fame

           According to The Hill newspaper, the special election race in New York’s 23rd congressional district is not quite over, as there remains a (remote) possibility that Conservative Party candidate Doug Hoffman could wind up with more votes than Democrat Bill Owens, who was seated in the House last week.   

            A state election official “said the state sent a letter to the House Clerk last week explaining that no winner had been determined in the 23rd district, and therefore the state had not certified the election. But the letter noted that Owens still led by about 3,000 votes, and that the special election was not contested — two factors that legally allowed Speaker Nancy Pelosi (D-Calif.) to swear in Owens on Friday.” 

            According to 1 Deschler’s Precedents § 3.5, “Where certificates of election have not been received, the House may by unanimous consent authorize the Speaker to administer the oath to Members-elect whose elections are not contested.”  Thus, while the Republicans presumably could have objected to Owens being sworn in, their failure to do so meant that he could be seated prior to the receipt of a certificate of election. 

            What happens if the final count should show Hoffman ahead of Owens?  The state election official says that “all ballots will be counted, and if the result changes, Owens will have to be removed.”  But I am not sure that the matter is so simple.  If Hoffman were to be certified as the winner, the House would still have to take action to remove Owens and seat Hoffman.  Absent unanimous consent to such action, the matter would presumably be referred to the Committee on House Administration to conduct an election contest, which could drag on for months. 

What Holder Did on DC Voting Rights

          In February I wrote to suggest that the DC Voting Rights Act poses a significant challenge to the view expressed by many regarding the need to “de-politicize” the Justice Department and the Office of Legal Counsel in particular.  The reason is that this view squarely conflicts with the political imperative of supporting the Act, which is, to put it mildly, of dubious constitutionality. 

            Today’s Washington Post reveals that Attorney General Holder consulted with OLC regarding the DC Voting Rights Act and, to my pleasant surprise, OLC adhered to its previously expressed view that the Act is indeed unconstitutional.  More unpleasantly but less surprisingly, Holder then proceeded to get an answer that he liked better:   

“In deciding that the measure is unconstitutional, lawyers in the department’s Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.

Holder rejected the advice and sought the opinion of the solicitor general’s office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.”

Here it should be noted that there is a big difference between asking whether a law is constitutional and asking whether the Solicitor General’s office can defend it. The longstanding position of the Justice Department and the SG’s office is that “[t]he Department appropriately refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid.”  Letter of Attorney General William French Smith to the Honorable Strom Thurmond and the Honorable Joseph R. Biden, Jr., 5 O.L.C. 25 (Apr. 6, 1981).  Unless the statute infringes on executive power (which is not an issue regarding the DC Voting Rights Act), the “Department has the duty to defend an act of Congress whenever a reasonable argument can be made in its support, even if the Attorney General and the lawyers examining the case conclude that the argument may ultimately be unsuccessful in the courts.”  Id.

            Whether or not the DC Voting Rights Act meets this deferential standard, this is not the standard that applies (or should apply) when the Justice Department is asked for its actual opinion on the constitutionality of proposed legislation.  This made clear by the “Principles to Guide the Office of Legal Counsel” issued in 2004 by a number of former OLC lawyers, including Dawn Johnsen, President Obama’s nominee to head OLC.  The first principle states: 


When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.  

By rejecting OLC’s advice, Holder is clearly signaling that the Obama Administration is no more interested in getting legal opinions inconsistent with its policy preferences than was the Bush Administration.  Indeed, his actions compare unfavorably with those of former Attorney General Ashcroft, who famously refused to overrule OLC and other Justice Department lawyers on the issue of warrantless wiretapping, despite intense pressure from the White House to do so. 

As for those who believed that the Obama Justice Department would base its decisions on “the rule of law” rather than politics, today’s news provides the following clarification:  April Fool!        




Will the Minnesota Courts “Report” to the Senate on the Coleman/Franken Election?

        Eric Black at MinnPost (hat tip, Rick Hasen’s Election Law Blog) suggests that the three-judge panel hearing the Coleman/Franken election contest might, after resolving the question of which candidate received the greater number of lawful votes, file a separate report with the Senate on Coleman’s contention regarding the use of different standards for counting votes in different Minnesota counties.  (The essence of Coleman’s argument, as I understand it, is that the Minnesota counties that are not involved in the election contest counted certain votes which should not have counted under the standards set forth by the three-judge panel and, because these votes are no longer identifiable, it is impossible to say who received more votes under a uniform standard throughout the state.) 

            Black bases his suggestion on the text of Minnesota Election Statute 209.12, which provides:


    When a contest relates to the office of senator or a member of the house of representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election. The judge trying the proceedings shall make findings of fact and conclusions of law upon that question. Evidence on any other points specified in the notice of contest, including but not limited to the question of the right of any person to nomination or office on the ground of deliberate, serious, and material violation of the provisions of the Minnesota Election Law, must be taken and preserved by the judge trying the contest, or by some person appointed by the judge for that purpose; but the judge shall make no findings or conclusion on those points.

After the time for appeal has expired, or in case of an appeal, after the final judicial determination of the contest, upon application of either party to the contest, the court administrator of the district court shall promptly certify and forward the files and records of the proceedings, with all the evidence taken, to the presiding officer of the Senate or the House of Representatives of the United States.

(emphasis added). 

            The statute thus provides that the sole function of the Minnesota courts is to determine “which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election.”  The statute clearly contemplates that there will be other points on which evidence must be taken and preserved and that, following the conclusion of the case, the entire record, including but not limited to evidence relating to points which the court was not permitted to resolve, shall be transmitted to the Senate.

            In making its ruling, therefore, the court will have to resolve the question of whether Coleman’s argument falls within the category of issues that it is permitted to address in the first place.  The answer to this question is by no means obvious, at least based on the face of the statute.  One could make a plausible argument that this issue goes directly to the determination that the court is supposed to make, ie, who received the most lawful votes, and therefore is one that the court may resolve.  On the other hand, one could make an equally plausible argument that this is one of the other points that the court is supposed to leave to the Senate to answer because the statute does not contemplate a judicial determination that no one is entitled to the certificate of election. 

            Assuming that the court decides to award the certificate of election to Franken, I agree with Black’s intuition that the manner in which it treats Coleman’s argument could be quite important to the course of future Senate proceedings.  At one extreme, the court might consider Coleman’s argument on the merits and make findings of fact against him (eg, that even if the other counties had counted in accordance with the proper standard, Franken would still have received more votes).  At the other extreme, the court might find that it was without power to consider Coleman’s argument, but urge the Senate to do so. 

            I do not, however, see anything in the Minnesota statute that would authorize the courts to make a separate report to the Senate.  The only thing that the statute says should be transmitted to the Senate (assuming that one party so requests) is the evidentiary record.  Any views that the courts (either the trial court or the Minnesota Supreme Court) wish the Senate to consider will have to be included in their opinions resolving the case before them.

Unintentionally Revealing Quote of the Day

The first line in an article from The Hill on the Citizens United case: “The Supreme Court on Tuesday heard arguments in a case that could further erode the government’s control over electioneering communications in the days leading up to elections.” 

First they came for the government’s right to ban advertisements critical of Members of Congress and I did not speak, because I was not a Member of Congress.  Then they came for  the government’s control over electioneering communications and I did not speak, because I did not work for the FEC. . . .

Minnesota Supreme Court Rebuffs Franken

            The Minnesota Supreme Court has rejected Al Franken’s petition to direct the Governor and Secretary of State to issue an election certificate prior to resolution of the election contest for U.S. Senate.  First, the court found that “[t]he plain language of [the Minnesota statute] provides that no election certificate can be issued in this Senate race until the state courts have finally decided the election contest.”   

The court then turned to Franken’s argument that the Minnesota law in this regard conflicted with the federal constitution, particularly the Senate’s authority to judge its own elections.  As I have previously explained, however, this argument makes no sense because the Senate clearly has the authority to seat Franken, or his opponent for that matter, regardless of whether a certificate has issued.  The Minnesota court made this same point, noting that “if the Senate believes delay in seating the second Senator from Minnesota adversely affects the Senate, it has the authority to remedy the situation and needs no certificate of election from the Governor to do so.” 

Finally, the court dealt with Franken’s contention that “the state should not put the Senate in the position of abrogating its own rules in order to provide Minnesota with the full and timely representation that the Constitution and federal statutes contemplate.”  The court also rejected this argument, holding essentially that accommodating the Senate’s rules as a matter of comity was not a function of the court when the Minnesota legislature had made a different policy choice.


What Would Johnsen Do On the DC Voting Rights Act?

            Dawn Johnsen, the President’s nominee to head the Office of Legal Counsel, has been highly critical of OLC’s performance during the last administration.  For example, she has accused John Yoo of “devis[ing] bogus constitutional arguments for outlandishly expansive presidential power” and has characterized Yoo’s defense of his own legal reasoning as “not merely false, but irresponsibly and dangerously false in a way that impugns OLC’s integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law.” 

            On December 21, 2004, Johnsen, along with other former OLC lawyers, issued a manifesto entitled “Principles to Guide the Office of Legal Counsel” to ensure that OLC adheres to “the rule of law” in the future.  At the core of these principles is the concept that OLC should not engage in results-oriented legal analysis in order to support policies of the incumbent administration.  For example, the first principle is  

When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action. 

            Similarly, Johnsen and her colleagues advise that OLC “should maintain internal systems and practices to help ensure that OLC’s legal advice is of the highest possible quality and represents the best possible view of the law.”  Not surprisingly, this principle requires that “OLC should afford due respect for the precedential value of OLC  opinions from administrations of both parties; although OLC’s current best view of the law sometimes will require repudiation of OLC precedent, OLC should never disregard precedent without careful consideration and detailed explanation.”

            Given these principles, it is inconceivable that Johnsen would advise the President to sign legislation that OLC has previously declared to be unconstitutional without “careful consideration and detailed explanation” from OLC as to why it has changed its mind.  This is particularly true if the proposed legislation would do violence to both the text and structure of the Constitution, conflict with the understanding and intent of the framers of both the original Constitution and the Fourteenth Amendment, contravene historical practice since the founding of the Republic and be inconsistent with controlling judicial precedent.  

            I refer, of course, to the District of Columbia House Voting Rights Act of 2009, which the Senate is scheduled to consider this week.  Less than two years ago the OLC analyzed the question of whether Congress could provide by statute for D.C. to have a voting representative in the House of Representatives, and found that “[i]n the absence of a constitutional amendment . . . the explicit provisions of the Constitution do not permit Congress to grant congressional representation to the District through legislation.”


This conclusion should not be, to put it mildly, controversial. The Constitution provides that “[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States,” and, as the Constitution makes clear and virtually everyone concedes, D.C. is not a state. Indeed, in the 2000 case of Adams v. Clinton, a three judge panel, in a decision affirmed by the Supreme Court, rejected the argument that D.C. could be treated as a state for purposes of granting representation in Congress: “Defendants argue that . . . the Constitution leaves no doubt that only the residents of actual states are entitled to representation. An examination of the Constitution’s language and history, and of the relevant judicial precedents, persuades us that defendants are correct and that the District-as-state theory is untenable.”

One would think, if one were unfamiliar with the ingenuity of lawyers, that this would be the end of the matter. Nevertheless, there are some lawyers and legal scholars who argue that Congress does have the power to enact the proposed legislation. Most prominent among them is Professor Viet Dinh, a former high-ranking official of the Bush Justice Department, who, interestingly, is also closely associated with the theories of executive power that Johnsen has so vigorously denounced.

It would be charitable to say that the arguments put forth by Dinh and others in favor of the constitutionality of the D.C. House Voting Rights Act are even plausible. As Professor Mark Scarberry suggests in a forthcoming article, the only “somewhat plausible” aspect of the arguments is the assumption that the lack of voting rights for D.C. was an oversight on the part of the framers, an assumption that he tries to lay to rest. Professor Jonathan Turley describes the proposed legislation as “one of most premeditated unconstitutional acts by Congress in decades.” Even some who favor the legislation, like Professor Rick Hasen, acknowledge that it is “probably unconstitutional.”

In any event, we know that Johnsen would never permit OLC to “craft merely plausible legal arguments” to support the President’s desired policy goals. She would never advise the President to sign legislation that was unconstitutional under OLC’s best appraisal of the law, even if there are plausible arguments to the contrary. And she would certainly never permit OLC to overrule its prior opinion without “careful consideration and detailed explanation.”

Would she?

More Fun with Certificates of Election

         Al Franken has petitioned the Minnesota Supreme Court for an order directing the Governor and Secretary of State to prepare and countersign a certificate of election and deliver the same to the President of the United States Senate.  The Governor and the Secretary have refused; they contend that, under Minnesota law, issuance of a certificate must await resolution of an election contest filed by Franken’s opponent, incumbent Norm Coleman.

            Franken acknowledges that Minnesota law is ambiguous on this point, but he claims that the state law must be read to mandate the issuance of a certificate.   Any other reading, he argues, would render the Minnesota law unconstitutional.  Specifically, Franken argues that Minnesota’s failure to issue an election certificate prior to the commencement of the new Congress “has interfered with the Senate’s ability to provisionally seat Senator-elect Franken and tend to the nation’s business with a full complement of Senators.”

            Franken is somewhat vague as to how the absence of a certificate has “interfered” with the Senate’s ability to seat him.  He does not actually say that the Senate is prohibited from seating him without a certificate (probably because he wants to preserve his option to argue the opposite to the Senate at a later time).  If there is such a prohibition, it can only exist because of Senate rules.  It would be this self-imposed rule, not Minnesota law, which would be “interfering” with the Senate’s ability to seat Franken.

            As suggested by the Illinois Supreme Court’s recent decision in the Burris case, it is in fact doubtful that Senate rules make the absence of a certificate an absolute bar to considering whether to seat a Senator.  If Senate rules did establish an absolute bar, there might be a constitutional objection to such rules as interfering with the Senate’s power to judge elections.  It is difficult to see, however, how this would impose upon Minnesota a constitutional requirement to issue an election certificate at any particular point in its process.

               If refusing to issue a certificate to Franken interferes with the Senate’s ability to seat him, it would have to be true that issuing such a certificate would interfere with the Senate’s ability to seat Coleman.  Yet the Senate clearly has the constitutional authority to judge the election and choose to seat either candidate, either now or at a later time.  In Roudebush  v. Hartke, 405 U.S. 15 (1972),  the winner of the initial count in a Senate race (Hartke) received a certificate of election from the State of Indiana and was provisionally seated by the Senate.   He then sought a federal court injunction to stop Indiana from proceeding with a recount, which was permitted under Indiana law notwithstanding the fact that a certificate of election had already issued.  The Supreme Court rejected the argument that the state recount would unconstitutionally interfere with or frustrate the Senate’s election-judging power: 

It is true that a State’s verification of the accuracy of election results pursuant to its Art. I, § 4, powers is not totally separable from the Senate’s power to judge elections and returns. But a recount can be said to “usurp” the Senate’s function only if it frustrates the Senate’s ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the   apparent winner in either count, and, if it chooses, to conduct its own recount. 

Id. at 25.  In other words, the Senate could have seated Roudebush (the other candidate), notwithstanding the fact that Hartke was initially declared the winner and issued the certificate of election, and it was free to accept or reject the results of the recount, regardless of whether they confirmed or overturned the results of the initial count. 

             In short, Minnesota’s refusal to issue an election certificate raises no serious constitutional question.