Any day now, a three-judge panel in Minnesota will rule on Norm Coleman's lawsuit to overturn the results of the state's Senate election recount, which was completed in January. The complete hand recount concluded that the incumbent Republican lost to challenger Al Franken by 225 votes. Coleman demanded a full court case; today, almost nobody, including Coleman's own attorney, thinks the Republican will prevail in the judges' upcoming ruling, which follows a tedious seven-week trial.
End of story, and after a drawn-out, 18-week process, Franken will finally be seated in the U.S. Senate, right? Wrong. If Franken prevails as expected before the three-judge panel, Coleman will then have 10 days to file yet another appeal, this one to the Minnesota Supreme Court. If Coleman loses there as well, Republican leaders in Congress are encouraging him to not give up his legal challenge and take his case all the way to the U.S. Supreme Court, which could create a scenario in which the Minnesota election might not get decided until the fall -- almost a year after voters went to the polls -- even if the Supreme Court refuses to hear the appeal.
As we discovered in Florida back in 2000, the U.S. election system is hardly perfect. And when contests are extraordinarily close and invite unprecedented scrutiny, questions always arise. But states do their best to ensure accuracy, and in the end, even in ridiculously narrow contests, a winner has to be declared and the loser has to accept defeat.
Except, apparently, in Minnesota, where Coleman has adopted the rather unique strategy of litigating his case indefinitely, thereby preventing Democrats from seating their 59th member in the Senate, where 60 votes are needed to cut off filibusters. Meaning, the battle for Franken's seat not only remains a news curiosity, but in terms of politics and power, it's a very big deal and has attracted nationwide press attention.
Coleman, of course, has the right to appeal his case, just as other suspicious second-place candidates have done in the past. What seems to be unique is this case, though, is how so much of the press coverage has politely refrained from suggesting that Coleman's a sore loser for adopting his marathon litigation approach.
Traditionally, candidates who lost and cried foul had a rather short window to prove their case before the media lost patience and started calling the candidate out as petulant and self-involved. Just ask Al Gore, who was hounded in the press by the specter of the "sore loser" label practically from the moment he withdrew his concession in the early morning hours following Election Day. I doubt a day went by during the Florida recount when there wasn't a "sore loser" reference to Gore in the press. (In Nexis, I found nearly 900 "sore loser" press mentions in Gore articles between November and December 2000.)
For some reason, Coleman has been able to mostly avoid the dreaded "sore loser" label, one that can be a career-killer for any politician. Instead, the press has largely given Coleman and his Republican supporters an open canvas on which to operate. (A Nexis search finds just a handful of "sore loser" media mentions regarding Coleman since November.) As Coleman and his attorneys look over their recount legal options, they in no way have to be concerned about or factor into play the potential "sore loser" meme that could do real damage to his effort. They can play hardball with impunity because they're getting a free pass from the press.
The strange part is that Coleman's getting that press pass even though some members of the Republican Party have been brazenly open in discussing the Minnesota case in terms of a blatant stall campaign specifically designed to thwart Democrats from securing the critical 59th seat in the U.S. Senate. (A quirk in Minnesota election law means Franken, the state's winner to date, cannot be seated in the Senate while Coleman's appeals process plays out in Minnesota courts.)
"The battle in Washington is real. Every day in the Senate without Al Franken is a great day," Sen. Tom Coburn (R-OK) recently told a Tulsa audience. Politico reported that Republicans back the idea of Coleman appealing his case indefinitely because "a long fight is worth it if it keeps Franken from becoming the 59th Senate Democrat, which would give President Barack Obama a huge advantage over the next two years."
Even when Republicans cast the litigation marathon as a way to simply freeze out Franken, the press and its army of commentators remain distant, reluctant to cast aspersions on Coleman's rope-a-dope campaign. In fact, a recent Wall Street Journal article on the delays ("Minnesota Senate Standoff Plays Into GOP's Hands") seemed to tip its hat to Republicans for so effectively stymieing Democrats [emphasis added]:
Four months after Election Day, the fight over Minnesota's U.S. Senate seat drags on with no clear end in sight. And that may be working to the Republicans' advantage. Party leaders say they are digging in for a prolonged legal process, keeping Democrats from claiming a seat they think is theirs -- and hampering the majority party's ability to push through its agenda.
[...]
But Republicans can claim a kind of strategic victory by blocking the Democratic former comedian's path to the Senate, which requires 60 votes to pass controversial items.
Only in the article's final paragraph did the Journal even hint that Coleman's marathon appeal process might -- just might -- have a political downside.
I think the free pass from the press has emboldened the Minnesota Republican and his army of attorneys in recent weeks. It's emboldened them precisely because there seems to be nothing they can do that will spark a "sore loser" backlash. For instance, earlier this month, Coleman's lawyers, after suffering a number of courtroom setbacks, wrote to the three-judge panel asking it to take the extraordinary step of setting aside the November vote and basically having the state, four months after the fact, revote. Claiming it would be impossible for the judges to pick a winner, Coleman's legal team suddenly wanted to start from scratch.
The ploy was a stunner and may have redefined election season chutzpah: It would have been like Gore's attorneys suddenly asking for a complete Florida revote amidst their oral arguments to the U.S. Supreme Court.
"[Y]owza!" Twittered ABC's Jake Tapper when reading the Coleman news. But interestingly, the Coleman call for a revote received very little attention (i.e. actual press coverage) inside the Beltway, and very few in the press treated the request as unusual, let alone borderline bizarre.
For the three days following Coleman's jaw-dropping request, the news received no coverage in The New York Times, The Washington Post, the Los Angeles Times, or USA Today. Coleman's request was all the more amazing considering there is there no mechanism or precedent under Minnesota law to allow for such an event. (Only the U.S. Senate could approve a total revote for Minnesota.)
The Hail Mary received zero network television news coverage and garnered just a passing reference on cable news, which came on MSNBC's Hardball. (At least that was the only cable reference found on Nexis; not every cable show's transcripts are archived there.) Even more incredibly, while discussing Coleman's extraordinary do-over request, the Hardball guests focused on Franken's reportedly low approval ratings among Minnesota voters. In other words, they wondered how Coleman's drawn-out election lawsuit was hurting Franken's reputation.
But imagine if the roles were reversed and Franken, the Democrat and former comedian (the press loves to stress that fact), had pulled a last-minute, let's-change-the-rules stunt while his attorneys plotted out even more long-shot legal appeals. I suspect that not only would the story have been thoroughly chewed over by Beltway scribes, but the media disdain would have been unmistakable and unvarnished.
Just ask Al Gore. In 2000, during the contentious recount process in Florida, the press made it abundantly plain that Gore not only faced an uphill battle winning the recount, but that he ran the risk of being dubbed a sore loser, a risk that had to weigh heavily into his recount strategy. The legal action surrounding Florida lasted just five weeks -- compared with the almost 20 weeks already taken up by the Minnesota wrangling -- but the "sore loser" meme was everywhere:
- "By energetically pressing that point, Republicans said they hoped to convey that Mr. Bush's ascent to the White House was inevitable -- and that sore losers in the vice president's camp were trying to steal the election from him." [The New York Times, 11/9/2000]
- "Mr. Bush's advisers accused the Gore campaign of playing fast and loose with the facts of the disputed vote in Florida, and they came to a news conference here armed with voter registration statistics, visual aids and pointed implications that Vice President Al Gore and his allies were acting like sore losers." [The New York Times, 11/10/2000]
- "In announcing that they would contest election results in Miami-Dade County (and perhaps elsewhere) in court, as allowed under Florida law, Mr. Gore's lawyers risked making Mr. Gore look, at least in legal terms, like the one thing he had struggled for days not to be seen as: a sore loser." [The New York Times, 11/24/2000]
- " In blunt, often brutal language reminiscent of the rhetoric aimed at President Clinton during his impeachment and trial, Gore is portrayed as a win-at-any-cost sore loser with a penchant for lying and a death wish for his party." [The Washington Post, 11/30/2000]
- "Republicans are already undertaking a public relations counteroffensive that will portray Gore as the ultimate sore loser." [The Washington Post, 11/27/2000]
- "But the official said the manual recounts must show a steady, even if slow, net gain in newfound votes for Gore. Otherwise, momentum will fade and Gore's continued legal battles will seem the desperate grasps of a sore loser." [The Washington Post, 11/17/2000]
And that was just a portion of the Times and Post news coverage. Everywhere Gore turned in late 2000, the press was warning him about the dangers of becoming (or being seen as) a sore loser. Either that, or the press was constantly reminding the public about how Republicans wanted to portray the Democrat. (Via the press, of course.)
Yet in all of their Coleman coverage since Election Day, neither the Post nor the Times has ever published the phrase "sore loser" in connection to the endless Minnesota litigation. And that's been the media rule in print and television. It's simply not something that Coleman or Republicans have to concern themselves with, which in turn provides them with enormous wiggle room for upcoming appeals.
If Coleman soon suffers yet another recount loss and appeals to the Minnesota Supreme Court, will the press finally dip its toe into the sore loser pool? What if Coleman loses at the Minnesota Supreme Court in April or May and then appeals to the U.S. Supreme Court, which could then tie up the Senate seat into next year? Will the press then suggest Coleman and Republicans are sore losers?
Is there any point along Coleman's unprecedented litigious path at which the press will apply the same standard to a Republican that it applied to a Democrat?
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