[Congressional Record Volume 155, Number 7 (Tuesday, January 13, 2009)]
[Senate]
[Pages S320-S321]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       MINNESOTA SENATE ELECTION

  Mr. KYL. Mr. President, I wish to speak briefly about the contest in 
Minnesota involving the Senate seat currently held by Senator Norm 
Coleman. Obviously, the other new Members of the Senate were sworn in 
last week, but this seat remains empty, a winner yet undeclared.
  To be clear, under Minnesota law, that is the way it has to be right 
now because there is an election contest that has been filed in the 
courts, and under Minnesota law, therefore, neither the Secretary of 
State nor the Governor can declare the seat filled.
  Senator Coleman had been declared the winner on election night and 
through the ensuing administrative canvassing process. But throughout 
the following State Canvassing Board stage of the proceedings, there 
were numerous inconsistencies and problems uncovered, and the board-
certified totals were different. They are, obviously, at issue, and 
they are preliminary.
  The Minnesota State Canvassing Board totals, for example, include 
more votes than voters in a significant number of the Minnesota 
precincts. So, clearly, there is something wrong, and it has to be 
resolved by the court.
  The Coleman campaign has followed Minnesota election law in filing an 
election contest, and that comes before a three-judge panel in 
Minnesota before the end of this month.
  The contest is based on significant errors. I wish to mention four of 
these categories so folks will understand what is at issue.
  First is newly discovered ballots which appeared for the first time 
during the recount and are included in the State Canvassing Board 
totals.
  Second is missing ballots supposedly tallied on election night but 
which could not be found during the recount process--obviously a 
problem.
  Third is double-counting of duplicate and original ballots of the 
same voter during the recount process.
  Fourth is wrongly rejected absentee ballots and inconsistent 
standards regarding what constitutes a wrongly rejected absentee ballot 
applied in different locations throughout the State.
  Let me discuss each of these briefly in turn.
  On the newly discovered ballots, there are 171 such ballots that 
appeared without explanation several days after the election in Ramsey 
County precinct Maplewood P6. Election officials were unable to 
reconcile the number of votes cast with the number of voters signed in, 
but the board, nevertheless, included the additional votes in Al 
Franken's favor in its totals. Furthermore, the board directed that 
this issue should properly be dealt with during the contest phase, and 
that, of course, is now occurring.
  On the missing ballots, there were 133 ballots in Hennepin County 
that could not be found during the recount and were declared 
``missing,'' despite the fact that there are any number of possible 
reasons for the change, including the possibility that the ballots 
never existed in the first place. But instead of following a consistent 
standard and including the new recount total, the board reverted to 
election night totals, again resulting in more votes for Al Franken.
  On the double-counting, in at least 25 precincts in Minnesota, there 
are more votes than voters in the Canvassing Board's totals, and there 
are 150 separate incident logs prepared by local recount officials 
describing issues involving duplicate and original ballot counting. 
This is due to the counting of both the voter's original ballot and a 
duplicate ballot which was created to take the place of the original 
ballot, resulting in double-counting of some votes when both of those 
ballots are included in the total. That is, obviously a blatant error 
and one that threatens the sanctity of ``one person, one vote.'' 
Obviously, most people get one vote. Those who got more than one vote 
have an advantage for whom they cast their ballot.
  Both the Canvassing Board and the Minnesota Supreme Court directed 
the issue to be dealt with during the election contest. So that issue 
is now being dealt with.
  Finally, on the category of wrongly rejected absentee ballots, during 
the recount process, a ``fifth pile'' was created for absentee ballots 
that were rejected but not because one of the four reasons stipulated 
by Minnesota election law. This fifth pile was requested

[[Page S321]]

by the Franken campaign at the time they were trailing in the count, 
and the Canvassing Board granted the request without issuing any 
direction to ensure consistency among the counties in their review. A 
vast number of these ballots, which happened to generate more votes for 
Franken, were included in the Canvassing Board total. However, the 
board also refused to review over 160 ballots requested by the Coleman 
campaign.
  We can see there are obviously some issues to be resolved. The three-
judge panel will be appointed. The campaigns will convene with the 
panel, set forth the ground rules for the election contest trial, and 
then that will occur.
  There are no stipulations for when the proceedings must be completed, 
and estimations are, at least from folks in Minnesota, that it could 
take a month, if not more.
  As a part of that context, the Coleman campaign has requested the 
review of hundreds more ballots that may have been wrongly rejected. 
Because of the size of the pool of ballots to be reviewed and the 
erroneous recount totals including questionable votes for Franken, 
Senator Coleman has expressed confidence that the numbers will revert 
back to where they were on election night and his lead will be restored 
and then he would be declared the winner.
  Obviously, this is for the Canvassing Board and the court in 
Minnesota to resolve. It is not for us to prejudge the result at this 
time. Unfortunately, the majority leader and his staff have publicly 
stated they would try to seat Al Franken while the contest is still 
proceeding, despite the fact there is not a signed certificate, which 
is required of every Senator. This dates back to 1884. This action, of 
course, was blocked, and we presume the process will continue in 
regular order to await the result of the proceedings.
  It is true Al Franken attempted to declare himself the winner. 
Yesterday, the campaign requested the Governor and Secretary of State 
send him a certificate so he could be seated. But it was, of course, 
not granted because both officials indicated correctly that would 
directly violate State law.
  So we are left with the matter of a vacancy in Minnesota, with the 
issue to be resolved by the people in Minnesota, properly under their 
law, the Canvassing Board, and the three-judge court. For my part, I 
certainly hope this phase will not fall prey to inconsistencies and 
problems that have led some experts and newspaper editorials to claim 
the election process needs to be fundamentally reformed. If it is done 
in the proper way and due care for the evidence that is presented, then 
hopefully everyone will be satisfied with the result and willing to 
abide by that result. It will then come to the Senate, and we will seat 
the appropriate candidate.
  The Republicans ask for nothing more. We are certainly hopeful our 
former colleague and soon-to-be current colleague, Senator Coleman, 
will resume his seat. But that is for the process in Minnesota to 
determine, not for that to be determined in some arbitrary way in the 
Senate.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Mr. President, how much time is reserved for this side of 
the aisle?
  The ACTING PRESIDENT pro tempore. There is 7 minutes 40 seconds.
  Mr. LEAHY. I thank the distinguished Presiding Officer, my good 
friend from Montana.

                          ____________________