Franken Leads by 48 Votes After Most Challenges Resolved

Democrat Al Franken now holds a 48-vote lead over incumbent Republican Senator Norm Coleman in the Minnesota U.S. Senate race, according to an analysis by the Minneapolis-St. Paul Star Tribune of a draft report from the Minnesota's Secretary of State's office. That report dealt with the 5,000 or so ballots which had been challenged by one or both candidates, which challenges have since been withdrawn.

Franken had, by some counts, been leading by 251 votes before incorporating the withdrawn challenges.

Two days ago, Franken's lead lawyer, Mark Elias, set forth the Franken campaign's evaluation of where the results would stand after incorporation of the previously-challenged ballots. As quoted at MinnPost.Com, Elias predicted that:

Al Franken will have more votes than Norm Coleman … We believe firmly that margin will be between 35 and 50 … At some point not long after that, Al Franken will stand before you as the senator-elect from Minnesota.

The current vote total does not include some ballot challenges which remain unresolved, but which should be resolved tomorrow; nor does it include an estimated 1,500 to 1,600 absentee ballots which had apparently been improperly rejected. The Minnesota Supreme Court has instructed the candidates to cooperate in coming up with a plan by December 31 to allow for the counting of the improperly rejected absentee ballots. (Video of the oral arguments before the Minnesota Supreme Court on that issue, in Coleman v. Ritchie, is available here.)

The Coleman campaign has also argued that some 130 ballots may have been double-counted, and they are seeking court intervention to require recounting of all precincts in which they contend such double counting may have occurred. The Minnesota Supreme Court is expected to take up that issue tomorrow, December 23.

The Minnesota State Canvassing Board, when it meets tomorrow, is expected to act to officially allocate the previously-challenged votes. The Secretary of State chairs that Board, whose rulings thus far have been largely across party lines, by unanimous agreement. The Canvassing Board meetings are live-streamed both by the Star Tribune and TheUpTake.

At this point, based upon prior court rulings and the state of the vote tally, Al Franken has to be favored to become the next U.S. Senator from Minnesota.

Photo: Al Franken campaigning, from Wikimedia Commons.

Attorney General Brown Urges Supreme Court to Invalidate Prop 8

Proponents of Prop 8 Urge Court to Invalidate 18,000 Gay Marriages

California Attorney General Jerry Brown today urged the California Supreme Court to invalidate Proposition 8 "because it deprives people of the right to marry—an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution."

“Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification", Brown said.

"Brown concludes that existing case-law precedents of the Court do not invalidate Proposition 8 either as a revision or as a violation of the separation-of-powers doctrine", but that "in order to invalidate (the) fundamental right (to marry), the Court must determine that there is a compelling justification to do so. But in the In re Marriage Cases, the court found that no such compelling justification exists. Accordingly, Proposition 8 must be stricken. "

Meanwhile, the Sacramento Bee reports that supporters of Proposition 8 filed a brief arguing that California cannot recognize same-sex marriages in California, based upon the language of Prop 8 - that only marriages between a man and a woman are recognized or valid in California.

"Proposition 8's brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions or exclusions," reads the brief co-written by Pepperdine University law school dean Kenneth Starr, the former independent counsel who investigated President Bill Clinton.

It was also announced that Ken Starr would serve as lead counsel for the Yes on 8 team, and would argue before the California Supreme Court. Evidently, he will argue that the Court is without authority to overturn Prop 8's ban on same-sex marriage:

For this court to rule otherwise would be to tear asunder a lavish body of jurisprudence. That body of decisional law commands judges - as servants of the people - to bow to the will of those whom they serve - even if the substantive result of what people have wrought in constitution-amending is deemed unenlightened.

(Interesting use of "asunder", "lavish" "bow" and "wrought" in one paragraph.)

Attorney General Brown has taken the position that "same-sex marriages entered into between June 16 and November 4, 2008 are valid and recognized in California regardless of whether Proposition 8 is upheld."

The 111-page brief filed by the California Attorney General is available online as a pdf.

The brief filed by the Yes on 8 team was not immediately available.


Photograph: Jerry Brown as Mayor of Oakland