As the Minnesota U.S. Senate election trial ends its fourth week on Friday, partisan criticisms against Norm Coleman continue to mount from the left. Coleman has been accused of belaboring an election process which has left the Gopher State now without its full complement of Senators in D.C. for 47 days – now the second longest stretch in the history of the state (passing the 43-day stretch without a Senator in 1940 after the death of Senator Ernest Lundeen in August of that year).

Whether it is Al Franken’s legal team accusing the Coleman camp of moving too slowly in the trial or loyal DFLers (and some independents) statewide who believe Coleman should not have even filed the lawsuit, one political argument levied against Coleman is that the Gopher State needs two Senators in D.C. now more than ever – given the important legislation coming out of Washington D.C. The political argument goes something like this: Coleman should put the State first as his tactics put in danger Minnesota getting its ‘fair share’ at a time of great economic peril.

As DFLers in St. Paul battle Governor Tim Pawlenty in the state budget crisis, Speaker of the House Margaret Anderson Kelliher also recently mentioned at a press availability two weeks ago how it is important for her to have two Senators upon which to call in Washington to find out how federal legislation will affect the Gopher State.

Absent during all these weeks, however, has been any consistent outrage, by the left or the right, levied against U.S. Senate Majority Leader Harry Reid for not moving to declare Coleman’s old seat vacant – a move which would trigger the 17th Amendment process and result in Pawlenty having the authority to appoint an interim Senator.

The idea of a possible Pawlenty appointment gained steam in mid-December 2008 when the Governor confirmed he was indeed making such contingency plans. Pawlenty said he expected such plans would not be necessary, however, because, “It is unlikely that there would be a long term vacancy or an intermediate term vacancy in that seat.” At the time, Pawlenty expected a Senator to be seated in January.

Now, two months after Pawlenty delivered those remarks, with Amy Klobuchar still flying solo in D.C.’s upper chamber, the question becomes: “How long is a ‘long term’ or ‘intermediate term’ vacancy?” And isn’t it time for Minnesotans of both political stripes, if they are truly concerned about the Gopher State’s lack of representation in the Senate, to put pressure on Harry Reid to declare the seat vacant?

Politically, of course, there was great reluctance by the Democrats and Harry Reid to declare a vacancy as the recount moved into January.

First, with the controversial stimulus package on the table, Reid did not want another Republican in the chamber, appointed or otherwise.

Secondly, there was the fear that Pawlenty could theoretically appoint Coleman to the seat, which would give the Senator an extra air of legitimacy during the recount and subsequent court challenges. However, the danger of Governor Pawlenty appointing Coleman was not likely very high – Pawlenty is politically astute and, with a potential reelection campaign coming up next year – the Governor would not want to seem too partisan during this high profile recount process.

Thirdly, Reid likely did not want to call for a vacancy with Franken leading in the vote count after the certification. Rather, Reid and other Democrats have floated the idea of provisionally seating Franken, and Franken himself now gives himself “Senator-elect” status; a move even more brazen than Barack Obama’s creation of the “Office of the President-Elect” after the November 4th election (with Obama, there was at least the certainty that he would ascend to the office in question).

Fourthly, there is precedent in the Senate to not call for a vacancy while an election is being contested. In the closest U.S. Senate race in American history, the 1974 New Hampshire U.S. Senate election pitting Republican Louis Wyman against Democrat John Durkin which endured two recounts, several attempts by the Democratic Senate to seat Durkin, and, ultimately, a new election, the seat was not declared vacant for more than seven months. A vacancy was not declared until Durkin and Wyman agreed to a new election in August 1975 (at which point Republican Senator Norris Cotton, for whose open seat Durkin and Wyman were fighting, was appointed back into the Senate until the September election, which Durkin won).

The New Hampshire case had other similarities to the Coleman-Franken battle, including a Republican Governor and a Democratic Senate with a large majority itching to get its candidate seated.

It is certainly unlikely at this point that a vacancy in Coleman’s old seat will be declared, unless the recount trial gets belabored even longer than expected, or somehow events take shape that lead to a new election. Regardless of its likely success or historical precedent, it is surprising that the GOP has not brandished this political weapon in its arsenal more frequently – criticizing Senator Reid who is also holding up Minnesota’s ability to have its voice fully heard in the U.S. Senate. It might be an effective counterpunch delivered to DFLers as they continue to hammer away at Coleman and the trial as it heads into its second month.


  1. Tom Scheck on February 19, 2009 at 8:07 pm


    I may be wrong about this but I believe that there are certain conditions that define what makes a seat “vacant” which are not applicable to Minnesota. Here’s an excerpt from the Federal Vacancies Reform Act ( :

    Q3. When does an office become “vacant” for purposes of the Vacancies Reform Act?

    A. Under the Vacancies Reform Act, a vacancy arises when a relevant officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” The full range of what would constitute being “otherwise unable to perform the functions and duties of the office” is unspecified in the Act, except that the Act provides that “the expiration of a term of office is an inability to perform the functions and duties of such office.” (5 U.S.C. § 3345(c)(2)) In floor debate, Senators said, by way of example, that an officer would be “otherwise unable to perform the functions and duties of the office” if he or she were fired, imprisoned, or sick. See 144 Cong. Rec. S12,823 (daily ed. Oct. 21, 1998) (statement of Sen. Thompson); id. at S12,824 (statement of Sen. Byrd). The Office of Legal Counsel can assist you with any questions about whether an office is vacant for purposes of the Act.

  2. Eric Ostermeier on February 19, 2009 at 8:19 pm

    Thanks, Tom, and that is my general sense too from precedent (e.g. New Hampshire, 1974). Though it was my understanding there was a little more ‘wiggle room’ under the Act, and, hence, Pawlenty was making his contingency plans.

    Though, if it is as strictly interpreted as you suggest, I suppose, theoretically, Minnesotans could still put political pressure on D.C. to amend the Act to explicitly apply to election contests (the “Minnesota exception” as it would henceforth be fondly known as) — though that would never fly under this climate, with a Democratic Congress and President and a GOPer being the fruit of such a resulting appointment.

  3. Jeff Baumann on March 1, 2009 at 7:32 am

    Governer Pawlenty has an affirmative duty to himself declare the seat vacant (his office has already confirmed to me that the seat is, indeed, vacant, and everyone in Minnesota concurs) and to follow the 17th amendment and issue a writ of election to fill the seat. The MN Supreme Court likewise needs to stop its extraconstitutional proceedings, declare the “election contest” moot, and advise Pawlenty to call a new election. This flagrant disregard for the Constitution is frightening, and this silence on this basic issue is deafening.

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