One Way to Make the Franken-Coleman Race Even Crazier: Send It to the Senate

The constitutional proviso that “each house (of Congress) shall be the judge of the elections, returns, and qualifications of its

The constitutional proviso that “each house (of Congress) shall be the judge of the elections, returns, and qualifications of its own members” could well be put to the test in the coming weeks, if Al Franken ends up appealing the results of his Minnesota Senate race against Norm Coleman to the U.S. Senate.

The logic behind such a move would be obvious: If Coleman, who led by 215 votes after the initial election night count, ends up being declared the winner and Franken can make a plausible case that the recount was somehow flawed and he was the rightful winner, the Democratic-dominated Senate would, presumably, be inclined to give him the benefit of the doubt and find a rationale for seating him.

As one Democratic senator supposedly put it the last time the Senate was called upon to mediate an election: “We should count the ballots, debate the issues fully and fairly, and then vote to seat the Democrat.”

That was more than 30 years ago, back in 1975, when two different recounts in New Hampshire produced two different winners. Then, as now, Democrats enjoyed a healthy majority in the Senate, and it was the Democratic candidate who asked the chamber to resolve the election. But the process that then played out wasn’t nearly as quick, orderly or predictable as he thought it would be, an example that could serve as a cautionary note if the current Minnesota race does land in the Senate.

The ’75 Senate dispute began on Election Day 1974, when Republican Louis Wyman, a five-term veteran of the U.S. House and a fixture in New Hampshire politics for a quarter-century, found himself in an unexpectedly tight race with Democrat John Durkin, a 39-year-old state insurance commissioner whose campaign had been regarded (even by his own party) as a lost cause. The two were vying to replace Norris Cotton, the 75-year-old Republican who had declined to seek reelection in what was then a solidly Republican state.

When the counting was complete, Wyman held a 542-vote advantage, out of more than 220,000 cast. As in Minnesota this year, a recount was promptly ordered, which dragged on until the end of November – when Durkin emerged as the apparent winner, by just 10 votes. He was then certified as the victor by New Hampshire’s firebrand Republican governor, Mel Thomson, and the state’s all-Republican Executive Council and the media began referring to him as “Senator-elect John Durkin.”

But Wyman wasn’t finished. He instead appealed the recount to the state’s Ballot Law Commission, a three-member panel made up entirely of Republicans – including Warren Rudman, then New Hampshire’s appointed attorney general. Not surprisingly, Durkin challenged the commission’s right to intervene, arguing that it had no jurisdiction over elections. But his attempt to block the review in federal court failed, and – again not surprisingly – the Ballot Law Commission immediately awarded enough contested ballots to Wyman to erase Durkin’s 10-vote edge, which prompted Governor Thomson and his Executive Council to rescind their earlier certification of Durkin as the winner.

That was in early December. Through fits and starts caused by Durkin’s various appeals to state and federal courts, the ballot commission proceeded with its review until December 23, when it determined that Wyman had won the election by two votes. Thomson and the Executive Council certified that result the next day, while Durkin announced that he would appeal to the Senate.

In theory, the appeal would be easily resolved, with Democrats controlling 61 seats in the Senate, enough to enforce their will in any matter. But that’s not quite what happened.

The matter first went to the Rules Committee’s Subcommittee on Privileges and Elections, a three-member panel chaired by Rhode Island Democrat Claiborne Pell. The subcommittee would review the election and report back to the full committee, which would then make a recommendation to the full Senate, which would vote on which man to seat.

But the subcommittee couldn’t make up its mind on how to proceed; there was concern even among Senate Democrats about the precedent that would be set by reviewing individual ballots. So they kicked the matter back to the full Rules Committee, on which Democrats enjoyed a 5-3 advantage.

One of those Democrats, however, was Alabama’s James B. Allen, a conservative Southerner who, in this day and age, would undoubtedly be a Republican. As it was, Allen often voted like a Republican, and on January 12 – two days before the new Congress was to convene – he joined with the committee’s three Republicans in voting to seat Wyman. The four Democrats voted not to seat anyone until the committee could decide how to judge the election, and a deadlock was forced. The matter was sent to the full Senate without a recommendation, and the new Congress began with New Hampshire short one senator.

Through all of this, Wyman and the Senate’s Republicans were calling for a new election to be held, arguing that the first vote had effectively been a tie. Their real motive was simpler: Given the Democrats’ numbers advantage, they knew there would never be enough votes to seat Wyman; the best they could do was stall.

And a fine job of stalling they did. By February, the election was back in the hands of the Rules Committee, which finally agreed to review the 935 contested ballots that had formed the basis for the New Hampshire ballot commission’s decision to declare Wyman the winner. But the Rules Committee’s recount didn’t actually start until late March, and was almost immediately interrupted by the House’s Easter recess. When it resumed work, it again found itself deadlocked, with Alabama’s Allen once again joining Republicans on key votes. Failing to reach agreement on 27 specific ballots, the committee once again sent the matter back to the full Senate, still unresolved.

It was finally brought to the House floor in mid-June, where Democrats quickly discovered the limits of their lopsided majority. With 61 votes, they theoretically had the power to cut off debate on any item and force a vote – a maneuver that required 60 votes. Repeatedly in June and July, they tried to do just this, and repeatedly they failed. The culprit: Four Southern conservatives (James Eastland and John Stennis of Mississippi, John McClellan of Arkansas, and Allen) breaking ranks and siding with Republicans, who clung to their demand for a new election (and who were buttressed by polls in New Hampshire which showed wide support for the idea).

On and on it went like this, through 35 inconclusive votes and 100 hours of floor debate, until Durkin, wryly noting that the six-year term would probably expire before the Senate made up its mind, threw in the towel on July 29 and accepted his opponent’s call for a new election. Right away, the Senate declared the seat vacant, and – in accordance with a law that New Hampshire’s Republican legislature had passed during the Senate dispute – a special election was scheduled for September 16. (In the meantime, Republican Cotton agreed to suspend his retirement and fill the vacant seat until the revote.)

The ensuing six-week campaign attracted wide national interest, a far cry from the previous year, when Durkin was seen as a sacrificial lamb. Ronald Reagan and Gerald Ford, each gearing up for the 1976 New Hampshire Republican primary, campaigned for Wyman – Ford in an 11-hour whirlwind tour the weekend before the election. Durkin, aware of his national party’s general disfavor in New Hampshire, kept big name Democrats away and told voters that he was neither a liberal nor a conservative.

The final result, though, was a shock. With 54 percent of the vote and a 27,000-vote plurality, Durkin drubbed Wyman on September 16, finally ending the chaos more than ten months after it began. The result was seen as a body blow to the national G.O.P., which had suffered badly for the sins of Watergate in the ’74 elections and which would have to defend the White House in ’76.

Ford, who was grappling with a stalled economy and still paying for his pardon of Richard Nixon, was assigned much of the blame for Wyman’s defeat. Another factor, though, was Wyman’s own role in the Watergate mess. Just as the special-election campaign began, Ruth Farkas told the Watergate grand jury that Wyman had been the middleman when she’d purchased the ambassadorship to Luxembourg from Nixon. Talk of a Wyman indictment, which the Watergate prosecutor publicly refused to tamp down, haunted the Republican on the campaign trail.

In the end, Durkin’s triumph was short-lived. Seeking reelection in 1980, he was challenged by Rudman, the former state attorney general who’d once been so helpful to Wyman. Powered by Ronald Reagan’s coattails, Rudman edged out Durkin by four points. Ten years later, an older and grayer Durkin attempted a comeback, running for an open Senate seat against Bob Smith, a burly first-term Republican congressman. Smith won by 34 points, and Durkin’s days in politics were done. Until Jeanne Shaheen defeated John Sununu last month, Durkin’s 1975 victory marked the last time a Democrat had won a Senate race in New Hampshire.

Whether the Franken-Coleman contest will ever reach the Senate is anyone’s guess. But if it does, it’s worth wondering if, 34 years later, the world’s most exclusive club will be any better at making up its mind. One Way to Make the Franken-Coleman Race Even Crazier: Send It to the Senate