Lexicon Devils

After narrowly upsetting entrenched Alaskan Republican familial scion Lisa Murkowski in a Primary on August 24th, Tea Bag Senate hopeful Joe Miller invoked Al Franken’s name to cast a scary specter over the the fact that absentee ballots were still being counted saying to Fox Business News (via Salon):

“It concerns us any time somebody lawyers up and tries to pull an Al Franken, if you will. We are very concerned that there may be some attempt here to skew the results.”

And thus Franken’s name enters the conservative, and by extension national, political lexicon as a description and/or synonym for illegitimacy, shorthand for “funny business,” an epithet that signifies electoral chicanery with manufactured votes and stolen outcomes.  It’s an illustration of two things: (1) Conservatives are definitively not at all beholden to things like facts, truth and legally sanctioned outcomes, because as Alex Pareene sadly observes in the Salon piece above “In a fact-based world, ‘pull an Al Franken’ would mean “‘win an election by receiving more votes than the other person.'” (2) Conservatives cynically, yet masterfully, understand and exploit the fact that we currently do not live in a “fact-based world” or “fact-based” mental environment, and that in this age of false, tortured media equivalence ie: “Conservatives are actively starting to question whether or not the sky is actually blue.  DO they have a point?” Conservatives can and will inject brazen falsehoods, insinuations and smears like “pulling a Franken” into the modern media linguistic environment where usage, such as Miller’s, will lead to repetition which will eventually bestow some warped sense of legitimacy and acceptance on a Demonstrably False claim like “pulling a Franken.”

Attaching doubts and the stigma of illegitimacy on Senator Franken’s victory is a Demonstrably False enterprise because the record delineating the legality of his victory is extremely lengthy, clear and accessible.  Mr. Miller, of Palin’s Alaska,  is supposed to be an attorney of some kind, so his usage of Franken’s name in this particular context is especially dishonest and disingenuous.  An example of the clarity and accessibility of the record as it pertains to the contested Franken/Coleman election can be found in the upcoming, University of Minnesota Press, book This is Not Florida, written by journalist, Jay Weiner who goes into copious, sometimes exhaustive detail, earning the Frank Premack Public Affairs Journalism Award (Minnesota’s highest journalism honor), for his reporting  on the complex legal machinations of the 2008 Franken v. Coleman recount and subsequent election trial.

Weiner objectively observed the candidates navigation through the minutia of Minnesota Election Law and his work in This is Not Florida provides a critical illustration of the skeletal infrastructure of Democracy, deftly translating arcane recount procedures, absentee ballot statutes and legal jargon into straightforward prose, so that anyone with an interest in probing the bare bones of democracy: how votes are really counted at the count, what statutes stipulate grounds for legal rejection an absentee ballot, etc. can refer to the anatomical schematics painstakingly diagrammed in these pages.  Weiner, a veteran sports journalist who worked at the Minneapolis Star Tribune for 28 years, was thrust “serendipitously” (his exact word) into covering the election immediately after returning from the Beijing Summer Olympics.   He quickly delves into the ‘nuts and bolts’ aspects of Minnesotan Electoral Law which mandates a hand recount if an election result is less than one-half of one percentage point, which it certainly was in the case of the Franken/Coleman election as the candidates were separated by a sliding scale of only a few hundred votes out of nearly 3 million cast (with that high a number of total votes an electoral margin of as many as 15,000 votes or less would have triggered a recount).  Weiner notes the composition, and political affiliations, of members of the State Supreme Court, the Canvassing boards, election court judges etc.  This old fashioned, painstakingly middle of the road reporting (laced liberally and sometimes clumsily with sports metaphors) was assembled from Weiner’s laborious coverage of the state Canvassing Board’s meetings, the election contest trial and “almost every media briefing conducted by the two campaigns, their lawyers and the secretary of state’s office during the recount and trial”   (Weiner p. xiii).

Accusations designed to cast a pall on Franken’s legitimacy were being made by Coleman’s team and Republicans almost immediately following election night, which is one reason Weiner goes into great detail keeping score of the Judges political proclivities and the politics of the officials who appointed them, for instance the Chief Justice of the State Supreme Court Eric Magnuson was a law partner of Republican Governor, and stalwart conservative, Tim Pawlenty who had appointed him to the bench in June 2008, while Minnesota Secretary of State Mark Ritchie is dubbed “perhaps the most liberal elected official” in Minnesota (Weiner p. 38).  It’s silly to even have to consider things like these in an advanced, civilized society that conservatives always assert is at the vanguard of human achievement and accomplishment, ie. that vaunted “American Exceptionalism, ” yet it is they who’ve poisoned the atmosphere with petty accusations and baseless insinuations of bias, incessantly projecting nefarious deeds and intentions onto Democrats when the most blatant acts of bias and rancidly selfish, short-sighted partisanship in recent memory were committed by conservatives like Katherine Harris and the plants responsible for “the Brooks Brothers riot” during the infamous Bush v. Gore recount.  These people look at our society and our politics in such a two-dimensional manner that it appears impossible to them that these public servants and officials in Minnesota aren’t as prejudiced, corrupt and compromised as they are in their thoughts and dealings and therefor incapable of making an honest decision in the best interests of the public as codified by the constitution.  It starts with things like Reagan’s gibberish “Never speak ill of your fellow Republican” platitude, which if you think about it plainly tells you that their allegiance is always to their crooked little team/party first, not country.  The miserable, mush-mouthed McCain campaign tried to turn this inside out and project it onto Obama and the Democrats with their “Country First” gambit and for once people saw through it.

Like Pareene’s lament for a “fact-based world,” it’s as if Weiner knew that no matter how much honest, non-partisan work the lawyers, judges and canvassing board officials did, any result that didn’t favor Coleman was going to be cast by conservatives as biased and illegitimate, so belaboring the point of the political affiliations of the judges who made these pivotal decisions was a sad necessity of his work.  Towards the end of the book, Weiner cites a Wall Street Journal editorial (date is not specified), that attempts to establish a foothold for the “Coleman won the election but lost the recount” meme by stating that “Mr. Franken now goes to the Senate having effectively stolen an election.”  Weiner reacts bluntly to ludicrous assertions of this nature on page 226 of This is Not Florida:

“Stolen? If so, it was theft in plain view of a dozen judges, four of whom sat on the state Canvassing Board, the three judge trial panel picked by the Supreme Court, and a five judge Minnesota Supreme Court, with three judges appointed by Republican governors.  All thieves, no doubt.”

The truth is out there; and very easy to find to Mr. Miller.

In Weiner’s detailed observation of the recount and election trial, Coleman ultimately lost in court because, besides garnering more legally cast votes, Franken’s campaign, at the behest of the DSCC, had prepared for a recount and had recount action plans in place, as well as the specific lawyers, in-mind, and at the ready, to step in execute them immediately in the event a recount was necessary.  Lawyers such as Marc Elias and Chris Sautter who specialize in electoral law and recount litigation were hastily dispatched to Minnesota on Franken’s behalf.  Sautter, in particular, was extremely experienced and well-versed in recounts co-authoring The Recount Primer, literally the proverbial book on the subject.  In response, and in a typical move indicative of the misjudgments that would mar Coleman’s recount efforts, Coleman and his people chose a successful criminal defense lawyer named Joe Friedberg to be his lead election trial attorney.  Weiner analyzes Friedberg’s appointment in the following passage:

“Friedberg’s strength was his ability to woo jurors.  There would be none in this case.  His strength was in finding holes in a prosecutor’s case; in this trial, Friedberg would have to present the case.  He was skilled in cross-examination.  This Coleman case Friedberg was about to present would rely on direct examination.”  (Weiner p. 158)

Not only were Franken’s lawyers and campaign operatives more prepared, they harvested data better, keeping precise track of every call made on every challenged absentee ballot, following Sautter’s hard-won advice to always “keep track of the call at the table” which his experience:

“taught him that what a local judge decides during the hand recount is almost always what the more centralized Canvassing Board decides once the process moves to the next level and the votes are formally and finally counted”  (Weiner p. 49)

Superior preparation and informed legal strategies like this are why Franken prevailed.  As Weiner notes, “On this meticulous exercise, the Coleman team fumbled the ball.  According to just about every Coleman staffer and legal adviser, his campaign was not diligent in tracking every day exactly how the recount went in all 106 recount sites.” (Weiner p. 49)  Also, by all accounts, Democrats in Minnesota had far superior data on who their voters where and what precincts they lived in so that they could target absentee ballots in specific counties secure in the knowledge that a higher percentage of votes would surely be theirs when the ballots were examined.

Ultimately the state Supreme Court handed down a “per curiam,” or unanimous, opinion affirming “the decision of the trial court (also unanimous) that Al Franken received the highest number of votes legally cast.”  (Weiner p.214).  In an excellent, wide-ranging analysis Ohio State Law School professor Edward Foley wrote that “this unanimous affirmance of a unanimous trial court will stand as a model for how hard-fought battles over the winner of a high stakes election should be handled” before concluding:

“The Minnesota Supreme Court’s unanimity in Coleman v. Franken will stand the test of time as a model of judicial impartiality in the resolution of an intensely combative election contest because the membership of that court is politically diverse and because its decision follows upon the unanimity of a comparably diverse three-judge trial court.

No one can reasonably accuse Minnesota’s judiciary of favoring Franken because he was a Democrat.  The ruling and the reasoning of the judiciary would have been the same if the positions of the candidates had been reversed.”

So despite mountains of evidence, testimony and unanimous legal sanction and uncommon uniformity of judicial opinion, certain dregs of the conservative movement insist on casting aspersions on this election in bold defiance of an incontrovertible truth.   It is time for these lies, to be called what they are and expelled with extreme prejudice from our system, and it’s fitting that the man’s name at the center of this latest slur wrote the blueprint on calling out “lies and the lying liars who tell them.”  I’d love to see honest journalists and pundits follow suit.


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