by John Colapinto July 20, 2009
The interminable suspense became “the new normal.” Photograph by Steve Pyke.
At 8 A.M. on July 8th, the day after he was sworn in as the junior senator from Minnesota, Al Franken arrived at the Hart Senate Office Building, in Washington, D.C., for an informal breakfast with constituents and new staff members. Some fifty or so people crammed into a small chamber within the complex of offices that used to be occupied by Norm Coleman, Franken’s predecessor. A central table was loaded with coffee urns, pitchers of juice, and a chafing dish filled with wild-rice porridge. Franken, a short, sturdily built man, made the rounds of the room. His hair—which he used to wear in a huge fuzzy nimbus in his “Saturday Night Live” days (“You mean my Jewfro?” he said to me)—has long since been tamed into a short-back-and-sides cut. He wore tortoiseshell horn-rims and a gray summer-weight suit. When he smiled—a huge, toothy smile—his eyes disappeared into slits. Because he is short, he was often hard to see in the crowd, but he was never hard to find, owing to a raucous laugh that cut cleanly, and often, through the hubbub.
More than eight months had passed since the general election, on November 4th, when the race between Franken, a Democrat, and Coleman, a Republican, ended up too close to call. Finally, on June 30th, after a record-setting marathon of recounts and legal proceedings, Franken was declared the winner. This gave Coleman the distinction of having twice lost elections to candidates with unusual résumés: in 1998, he lost a run for governor against the wrestler Jesse (the Body) Ventura. Now he has lost to a man who starred in the movie “Stuart Saves His Family,” as a simpering self-help guru who mewled the daily affirmation “I’m good enough, I’m smart enough, and, doggone it, people like me!”
The mood at the breakfast was lively. Franni, Franken’s wife of thirty-three years, a thin, animated woman with wire-rimmed glasses, stood near the porridge table. “It’s so wonderful,” she said. “As soon as he was sworn in, I just felt as light as air. Just so joyous and relieved. It’s ‘Finally, Franken can get started!’ ” Franken’s chief of staff, Drew Littman, a Capitol Hill veteran who had been the policy director for Senator Barbara Boxer, of California, was talking about how Franken loves events like this breakfast. “We have to drag him out of these things,” Littman said. “Also, he’s introduced himself to every security guy and maintenance worker. We did a walk-through of the swearing-in on Monday before the Senate opened. He stopped everyone who was pushing a cart, pushing a broom—shakes hands and introduces himself. Most senators just avert their eyes and walk as quickly as they can.”
Franken’s daughter, Thomasin, a dark-haired twenty-eight-year-old with her father’s deep dimples, had retreated next door, into Franken’s new Senate office, a large room that was, as yet, undecorated except for a small snapshot of Franken’s family, which sat on a bureau behind the desk, along with a framed photograph of his close friend Paul Wellstone, the liberal Democratic senator who held this seat from 1991 until his death, in 2002. Thomasin sat on the edge of the desk. She was talking with Jess McIntosh, Franken’s press secretary, about the reaction of reporters when Franken was introduced to the public, two days earlier, by the Senate Majority Leader, Harry Reid. Everyone, from the Times to Politico, had expressed disappointment that Franken had failed to be funny and, instead, had acted solemnly senatorial, vowing to work as hard as he could for Minnesotans.
“Like he would ever, under any circumstances, come out to be introduced by the Majority Leader and crack jokes!” McIntosh said.
“Yeah,” Thomasin said. “They criticize: ‘He’s a comedian, and it’s going to be very inappropriate if he’s funny.’ And then it’s ‘Oh, he wasn’t funny!’ ”
Like Hillary Clinton in 2001, Franken enters the Senate as someone both blessed and burdened with the kind of celebrity that can summon a press scrum at a moment’s notice but can also create resentment among colleagues; also like Clinton, he has been reviled by Republicans. The day the Minnesota Supreme Court declared him the winner, Senator Jim Inhofe, Republican of Oklahoma, called him “the clown from Minnesota.” Senator John Cornyn, Republican of Texas, had previously declared that any effort to seat Franken prematurely would result in “World War III,” and he had suggested that a federal challenge could keep Coleman fighting in the courts for “years.” Such rancor, however, seemed to have vanished, at least for the moment. At his swearing-in, Franken was welcomed by repeated rounds of applause from his fellow-senators—including Republicans—who had shown up in force for the ceremony. Orrin Hatch, Republican of Utah, gave him a bear hug on the Senate floor, and, later, in the hallway outside, Franken received a similar embrace from none other than Inhofe. He was still glowing from the reception.
“Yesterday was a magnificent day,” Franken said at the breakfast. He went on, in a telltale deadpan, “And my feeling is that, um, if we can just make every day—” The room exploded in laughter.
“I did my first vote yesterday,” he said. “It was a little odd, because I discovered something about the Senate. Which is that you don’t get as much notice as I would normally want to have to evaluate the value of a program that I’m voting on the funding of.” (Franken had voted nay on an amendment, sponsored by John McCain, that would have eliminated funding for an anti-terrorism bus-safety program in Minneapolis—“an easy call,” as McIntosh put it, from a constituents’ perspective. Still, Franken was startled that he had had less than half an hour to study the bill; McIntosh, new to the Senate herself, acknowledged that a bill that was not an easy call would have been “scary.”)
“But I’ll learn the ropes here,” Franken continued. “I need all your help to do that. And those of you whose job it isn’t to help me do that—who are just visiting?” He cracked a wide grin. “Don’t worry about it!”
Franken was born in New York in 1951, the younger of two boys. (His brother, Owen, is a photojournalist.) When Franken was four, his father, Joe, moved the family to a small town in southern Minnesota to run a quilting factory owned by his father-in-law. The business failed, and two years later the family moved to the Minneapolis suburb of St. Louis Park. Joe became a printing salesman; Franken’s mother, Phoebe, got a real-estate license and began selling houses.
About twenty per cent of St. Louis Park’s residents were Jewish. They had moved there from the inner city, attracted by cheap housing and a lack of redlining restrictions, which kept Jews out of other suburbs. “Not exactly a shtetl,” Franken has written, “but by Minnesota standards, a lot of Jews.” The Times columnist Thomas Friedman, the political scientist Norm Ornstein, and the moviemakers Joel and Ethan Coen all grew up in St. Louis Park, within a four-block radius of one another. Some years ago, the ex-neighbors were asked by former Vice-President Walter Mondale why St. Louis Park produced so many notable people. Franken suggested runoff from a nearby creosote plant. The Coen brothers grandly equated the place with a small area of Hungary that had produced several nuclear physicists. Friedman suggested a solar-lunar eclipse. Miriam Kagol, who taught journalism at St. Louis Park Senior High School (Friedman was one of her students), offered another opinion, in a piece about the suburb in the Jewish Daily Forward, where she spoke about the migration of Jews to St. Louis Park in the forties and fifties: “It was at the time that all the political ferment had reached the Midwest and people were just full of ideas and protests, opinions, speaking their minds, finding ways to be free and anti-establishment.”
The Franken family talked about politics at the dinner table. Phoebe Franken was a Democrat. Joe had always voted Republican, but in 1964 he switched parties, “disgusted,” Franken has written, “with Goldwater’s opposition to the 1964 Civil Rights Act,” and voted Democratic in every election until his death, in 1993. But his primary influence on his son was not political. He loved comedy and comedians, and, with his sons, watched comedy shows for hours on television. It took Franken a while to make the connection with his own career. “I didn’t get it,” he told me. “And then suddenly one day I said, Oh, I know why I went into comedy!” Franken insists that comedy and politics are not as far apart as they might seem. Politics, he says, is about helping other people, making their lives better. Comedy does the same thing. “I actually think that making people laugh makes their lives better,” he told me. “You can’t underestimate that.”
In 1968, at the Blake School, a private high school, Franken met Tom Davis, and they formed a comedy-writing partnership. They remained a team for twenty years. “I’m not at all surprised that he has become a politician,” Davis told me. “I think what attracted him to comedy was that he wanted to do political satire. We started right in with Nixon stuff.” He went on, “He’s always had this amazing work ethic, an infinite amount of energy and intelligence and concentration, and now he’s finally bitten into something that’s really substantial.”
In 1969, Franken went to Harvard, where he majored in behavioral sciences. There he met Franni, a student at neighboring Simmons College. Their relationship was founded in part on a shared passion for politics. She was from Maine. Her father, a Second World War veteran, died in a car accident when she was seventeen months old, and her mother brought up Franni and her four siblings on Social Security survivor-benefit checks, supplemented by a job at a grocery store. Four of her children attended college on Pell grants and other scholarships. The experience made Franni a lifelong Democrat and a passionate defender of social programs for the poor. During the Senate campaign, Franken often told audiences, “Conservatives like to say that people need to pull themselves up by their bootstraps—and that’s a great idea. But first you’ve got to have the boots. And the government gave my wife’s family the boots.” (The two married in 1976, and have a second child, Joe, who works in finance.)
After graduating, Franken spent two years in Los Angeles, doing mostly politically oriented standup with Davis. In 1975, Lorne Michaels hired the pair to join the writing staff of “Saturday Night Live,” which was about to début. They got off to a slow start. Then, with the writer Jim Downey, they worked on a parody Presidential debate between Gerald Ford (Chevy Chase) and Jimmy Carter (Dan Aykroyd). “We worked with Chevy and Danny very closely on those debates,” Davis said. “So we stood out, and they discovered that Franken and Davis had this political-satire thing for real.” During that first season, Franken briefly joined his brother, Owen, who, working as a photographer, was covering the New Hampshire primary. They attended an event featuring President Gerald Ford. Franken asked Ford’s press secretary, Ron Nessen, to appear as a guest host on “Saturday Night Live.” Nessen performed in an Oval Office sketch in which Ford, played by Chase, stumbled over a wastebasket, stapled his ear, and shouted “Roll over, Liberty!” to a stuffed dog. (Nessen later received a reprimand from Ford’s son Jack.) In another first-season sketch, written by Franken and Davis, Aykroyd, as a despairing Richard Nixon, weeps as he talks with Henry Kissinger, played by John Belushi, on the eve of announcing his resignation:
NIXON: I’m telling you, Henry: I had nothing to do with the bugging of Watergate! I had nothing to do with the cover-up! With the break-in to Daniel Ellsberg’s psychiatrist’s office! Or with the man who was killed in Florida!
KISSINGER: Vhat man was killed in Florida, Mr. President?
NIXON: You don’t know about the little Cuban who . . . ah . . . never mind. Henry, get down on your knees and pray with me.
KISSINGER: Mr. President, you’ve got a big day tomorrow, why don’t ve get in our pajamas und go sleepy?
NIXON: Don’t you want to pray, you Christ-killer?
Franken wrote for “Saturday Night Live” from 1975 to 1980, and from 1985 to 1995. During his second stint, he was a more frequent onscreen performer, both as Stuart Smalley, the self-help guru, and as himself, in a recurring bit in which he announced the eighties as the “Al Franken decade.” (“Vote for me, Al Franken. You’ll be glad you did!”) But he left the show when Michaels refused to let him anchor “Weekend Update.” He concentrated on writing movies. Among them was the Andy Garcia and Meg Ryan drama “When a Man Loves a Woman,” about a husband helping his wife overcome alcoholism, which was in part autobiographical. Early in their marriage, Franni had successfully battled alcoholism—during his Senate campaign, Franken spoke publicly about this—and he later helped organize an intervention for Davis, who was abusing various drugs. (Franken has himself acknowledged cocaine use in his “S.N.L.” days.) The insights that Franken gleaned about twelve-step programs also informed his creation of Stuart Smalley.
In 1988, Franken attended the Democratic Convention, in Atlanta, where he approached his old St. Louis Park neighbor Norm Ornstein. They had not known each other in Minnesota, but Franken had watched Ornstein’s appearances as a commentator on C-SPAN and on the “McNeil-Lehrer News Hour,” on PBS. The two became friends. “I knew from the beginning that this was not the typical show-business person who in stereotype thinks he or she knows everything but in fact knows very little,” Ornstein told me. “This is a guy who has been a policy wonk for his adult life, not only interested in what’s going on but really keeping up with it—and he’s smart as hell.”
When Franken was asked to anchor Comedy Central’s coverage of the 1992 general election, he invited the owlish Ornstein to act as his pollster and straight man. After Bill Clinton’s victory in that election, Franken and Ornstein frequently joined the Clintons and other politicians and pundits at the annual Renaissance Weekends, on Hilton Head Island. Franken once declared himself an unabashed fan of President Clinton, calling him, “without a doubt, our best postwar President, and, if not for Roosevelt, the greatest of this century,” and adding, “Do I feel this way because I played touch football with him? Maybe.” Franken wrote comedic material for the President and the First Lady to deliver at Gridiron dinners and other functions. “I was his point person for the White House,” Mandy Grunwald, a former adviser to Clinton, says. “I was the person who would say, ‘Al, you can’t say that—he’s the leader of the free world!’ ”
Then came the midterm revolution of 1994, in which the Republicans captured fifty-four seats in the House and eight in the Senate—a victory produced in part by the belligerent rhetoric of Newt Gingrich, who became Speaker of the House, and by Rush Limbaugh, who roused millions of listeners. “Nobody was talking back to those guys,” Davis says. “That was a turning point,” Franni Franken says. “That’s when Al started writing his books.”
“I just got more and more sort of upset,” Franken says. His first book, “Rush Limbaugh Is a Big Fat Idiot” (1996), included “S.N.L.”-like parodies of the major Republican players. (A chapter titled “Operation Chickenhawk” imagined the warmongering Vietnam avoiders Limbaugh, Dan Quayle, Pat Buchanan, George Will, and Clarence Thomas being led, terrified, into battle by Oliver North.) But the book also gave free rein to Franken’s policy aspirations. To rebut Limbaugh’s assertions that under Ronald Reagan the poor received greater tax relief than the rich, he quoted from the Congressional Budget Office’s 1992 Green Book. He also wrote knowledgeably about the debates on health care, legal reform, and the environment.
The book went to No. 4 on the Times best-seller list. Franken followed it, three years later, with another politically themed book; this one was less successful commercially but hinted at his subsequent transformation from pundit to politician. Titled “Why Not Me?,” it was a meticulously researched fictional history of a successful Franken campaign for the Presidency in 2000 (and his eventual impeachment and removal from office). While sketching out the narrative, Franken held brainstorming sessions with Ornstein, Grunwald, and the Newsweek columnist and editor Howard Fineman. “We had a lot of discussions along the way just about the nature of electoral politics,” Ornstein says. “How do you run? What do you do? What are the rules?”
If Franken had designs on a real political career, however, he kept them secret for a few more years. “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right” (2003) provoked even greater animus among Republicans. It mocked the Bush Administration’s pre-9/11 anti-terrorism strategies (“Operation Ignore”), conservative commentators (“Ann Coulter: Nutcase”), and Bill O’Reilly’s boasts of a working-class background. At BookExpo America that year, in Los Angeles, Franken was on a panel with O’Reilly, who repeatedly yelled at him to “shut up.” (Their set-to was broadcast live on C-SPAN.) O’Reilly’s bosses at Fox News sued Franken and his publisher for using its “Fair and Balanced” slogan in his book’s subtitle; the suit was dropped after Fox failed to win an injunction against the book, but the publicity helped drive it to No. 1 on the Times best-seller list.
In 2004, to counter right-wing talk-radio celebrities, Franken began hosting his own program on Air America. “It was a political thing,” Franken told me. “That was the point of that, to not cede the radio. Not cede the dialogue.” In early 2006, he moved the show from Manhattan to Minneapolis—the first outward sign that he was contemplating a run for the Senate. He placed less emphasis on comedy and spent more time on substantive policy issues. But it was not, he says, until December, 2006, while on a U.S.O. tour in Iraq, that he “pulled the trigger” on the decision to run for the Senate. “I’d been thinking about it,” he says. “I was thinking, God, do I want to put my family through this? Do I want to take a couple of years off from working and earning an income? Do I want to work eighteen hours a day on this? And I’m in Iraq, and I just look around me and I go, ‘Are you kidding? Here are men and women on their third or fourth tour of duty. It’s horrible on their families, they’re in danger, for goodness sake. I mean, how can I not do this?’ ”
In February, 2007, he announced that he would challenge Senator Norm Coleman.
Like Franken, Coleman is originally from New York. He celebrated his twentieth birthday at Woodstock (a college-yearbook picture shows him with center-parted hair falling well below his shoulders), and he entered politics as a Democrat. He moved to Minneapolis in 1976, after earning a law degree, and worked as a prosecutor in the Minnesota Attorney General’s office. In 1993, he was elected mayor of St. Paul, and served two terms. He also supported the 1996 Senate reëlection campaign of Paul Wellstone. But shortly after Wellstone’s victory Coleman became a Republican, and in 2002 Karl Rove and George W. Bush urged him to make a bid for Wellstone’s seat. Wellstone was slightly ahead of Coleman in the polls when, eleven days before the election, Wellstone, his wife, their daughter, and five others died in a plane crash. Former Vice-President Mondale ran in Wellstone’s place but lost narrowly to Coleman. Franken, who had campaigned for Wellstone in all three of his Senate races, was devastated. Grunwald, who also worked on Wellstone campaigns, says that bitterness over that election was still being felt during this year’s recount battle. “In a way,” she says, “this all started when Paul died.”
Franken raised more than twenty million dollars for his campaign against Coleman, exceeding every other Senate challenger in the country. Coleman was equally well funded. The campaign quickly got ugly. Coleman portrayed Franken as an unserious, and even unstable, candidate. Franken promoted a plan for renewable energy, proposed a retirement plan that could be carried from job to job, called for fully funding the Veterans Administration, urged a five-thousand-dollar tax credit for students, and advocated trade agreements that included labor and safety standards. But he also played rough. Speaking of Democrats, he once wrote, “Our attack dogs are a scrawny, underfed pack of mutts that spend half the time chasing their own tails and sniffing each other’s butt.” Now he ran a series of ads that accused Coleman of taking trips paid for by special interests, accepting money from big oil and drug companies, and “living almost rent free in a million-dollar home of a Washington insider.” (Coleman sued over that one, but the suit was dismissed.) Three days before the election, the Minnesota Star Tribune reported that a lawsuit filed in Texas against Nasser Kazeminy, a businessman and Coleman supporter, contained allegations that Kazeminy had funnelled seventy-five thousand dollars to Coleman’s wife through her employer, a Minneapolis insurance broker. (Coleman and Kazeminy denied the charges.) “It was intense,” Grunwald says. “Right up until the last second.”
Election Day returns showed Coleman and Franken virtually tied. “I remember I went to sleep knowing it was just extremely close, and not knowing in the morning when I woke up whether I’d be ahead or behind and by how much,” Franken told me. “After a couple of hours of sleep, I heard we were behind by seven hundred votes or something.” He was crushed. “What happens is that the campaign becomes about, kind of, you know, the hopes and dreams of people riding on you,” he said. “Not just the people supporting you but the people you meet along the way.”
Several days later, when the tally was complete, Coleman’s lead had shrunk to two hundred and six votes—less than a hundredth of a per cent. By Minnesota law, a margin of less than one-half of one per cent requires a recount. Anticipating a close race, Franken’s campaign manager, Stephanie Schriock, had had lawyers on standby in case of a recount, and had begun recruiting and training volunteers to help oversee the sorting and counting of ballots across the state. “I knew going into Election Day we would be ready for whatever happened,” Schriock said. “And, thank God, we were.”
The recount began on November 19th. Minnesotans vote by filling in a bubble beside the candidate’s name on a paper ballot, which is then run through an optical scanning machine. In a recount, Minnesota law requires that every ballot be counted by hand. At more than a hundred recount stations in the state’s eighty-seven counties, representatives from both campaigns observed the sorting and counting of almost three million ballots. Secretary of State Mark Ritchie put up a Web site that kept a running tally of the count, which took seventeen days. The newspapers and television news faithfully kept track of the horse race, but these published totals were not an accurate reflection of the count, since each campaign’s representative could challenge ballots where there was doubt about the voter’s intent—ambiguous scribbles, areas where the voter seemed to have signed or initialled the ballot (which disqualifies the vote under Minnesota law), and other irregularities. These challenged ballots were placed in a separate pile, and left uncounted until they could be examined by the State Canvassing Board. The Coleman campaign ran up hundreds of challenges in every precinct, temporarily—and artificially—lowering Franken’s totals. But at every recount table Schriock had installed a volunteer to write down the original call by the neutral election judge—“on the assumption that most of the challenges would not stand,” she says. That way, the Franken organization was able to keep track of what the actual recount totals might look like. “This was critical,” Schriock says. “The most important thing for us was to make sure you got the right information all the time, twenty-four hours a day, seven days a week.”
When the first phase of the recount ended, on December 5th, the official totals gave Coleman a lead of almost two hundred votes. However, the Franken campaign’s internal count suggested that Franken was ahead by somewhere between thirty-five and fifty votes.
The State Canvassing Board, made up of Ritchie and four judges chosen from across the political spectrum, met to consider the challenged ballots on Tuesday, December 16th. By this time, Franken was feeling hopeful about his prospects for victory. “There is a subset of Democrats who tend to mis-fill out ballots,” he told me. “The way you mark the ballot is like an S.A.T.—you fill in the circle. And the subset of people who tend to, like, put a check there instead, or an X, or fill it out wrong, tend to be people who didn’t take S.A.T.s, or first-time voters, or people with English as a second language. So it seemed like we had a very good chance of prevailing.”
Each challenged ballot was projected onto a large screen visible to a roomful of observers from the public and the press. The members of the Canvassing Board scrutinized and debated the markings on each ballot to decide the voter’s intent, and their deliberations were videotaped and streamed live over the Internet. Minnesotans found the process mesmerizing.
Some ballots presented little difficulty; in one instance, a voter had clearly filled in the bubble beside Coleman’s name but had accidentally, or in a moment of indecision, touched his pencil tip in Franken’s bubble, leaving a small dot. The judges gave the vote to Coleman. Other ballots provoked long, absurdist exchanges. One ballot—from Beltrami County—became locally famous. The voter had filled in the bubble for Franken but had printed “Lizard People” in the write-in area. After a few minutes of discussion, Marc Elias, a lawyer for Franken, spoke up. “My argument would be that ‘Lizard People’ is not a genuine write-in,” Elias said. “In other words, is not a person.”
“Do we know that for sure?” one of the judges asked.
Another asked, “If it said ‘Moon Unit Zappa,’ would you say, ‘Oh, no, there is no such person as Moon Unit Zappa?’ ”
“I would say that that would be permissible,” Elias said.
“Well, but you don’t know that there’s not someone named Lizard People. You don’t!”
The judges voted to have the ballot tossed out.
On December 30th, the Canvassing Board finished adjudicating the challenged ballots, and added the tallies to the earlier vote totals. Franken pulled ahead by forty-nine votes.
The election now hung on a set of absentee ballots that had not been counted on Election Night. Some three hundred thousand absentee ballots had been cast in the general election, considerably more than in previous elections. Of these, twelve thousand had been rejected without being opened by election officials, because they failed to meet one or more of the state’s strict criteria: that they be notarized or witnessed by a registered voter, for instance, or that the signatures and addresses on the outer envelope match the voter’s absentee-ballot application. The Coleman campaign had initially fought hard to keep all rejected absentee ballots out of the count. Ordinarily, absentee ballots are cast by older voters who cannot get to the polls and by overseas military personnel. Both groups tend to vote Republican. But the Franken people, noting that the Obama campaign’s national drive for early voting had spurred record numbers of Democrats to the polls before November 4th, suspected that many Democrats had used absentee voting as a way to cast their ballot ahead of Election Day.
The Minnesota Supreme Court ruled that the rejected ballots be reviewed, and ordered the candidates and election officials to coöperate in identifying ballots that were improperly rejected. This allowed for some gamesmanship. The envelopes bore return addresses, which led the campaign representatives to try to guess what was inside. “The Coleman people were extra hard on St. Louis County, which is Duluth,” Schriock says. Duluth tends to vote heavily Democratic. “And we were probably extra hard on really red Republican counties.” Ultimately, both campaigns came up with nine hundred and thirty-three envelopes that they could agree had been rejected improperly.
On January 3rd, a Saturday, the ballots were opened in a room in the basement of the state legislature building. Secretary of State Ritchie, with representatives of both campaigns standing over him and a video camera live-streaming the event, opened the envelopes one at a time. As he opened ballot after ballot and called out “Franken,” Schriock says, “I realized it was going to be O.K. In fact, it was going to be really good.”
When the count was over, Franken’s lead had grown from forty-nine votes to two hundred and twenty-five. On Monday, the Canvassing Board certified the results. Having kept out of the public eye since the election, Franken called a press conference that afternoon. Standing at a lectern on the snowy street outside his house, Franni beside him, he struck a conciliatory tone toward Coleman, and thanked his campaign staff. “Now I am in the business of serving the people of Minnesota,” he said. “For our state, today marked the end of a long process that will forever be a part of Minnesota history.”
Minnesota election law, however, grants the loser in a recount a chance to challenge the tally, in a so-called Election Contest: a court trial, with testimony and evidence, before a specially selected three-person panel of Minnesota Supreme Court justices—an expensive and time-consuming procedure. “I actually thought there was a good chance that he would not contest it,” Franken told me. “Because we had so transparent, so complete, so meticulous a recount.”
The Election Contest of Coleman v. Franken began on January 26th, in the Minnesota Judicial Center, in St. Paul. Coleman needed to get more votes. The only place to find them was in the still unopened absentee-ballot envelopes that had been rejected on Election Night, in accordance with Minnesota law. To get some of those opened, the Coleman team needed to persuade the judges to relax the state’s legal standards. They settled on a risky strategy to do that: invoking the U.S. Supreme Court ruling on the 2000 recount in Florida, in Bush v. Gore—a ruling so unusual that even the Justices responsible for it suggested at the time that it be limited to “present circumstances” and not taken as precedent.
In 2000, Bush’s lawyers put a stop to the recount in Florida by arguing that the “equal protection” clause of the Constitution, which guarantees that all citizens have the right to have their vote counted equally, was being violated, because Florida lacked a uniform standard in determining what constituted a legal vote. The Supreme Court agreed. The recount was stopped, Election Day totals stood, and Bush was handed the Presidency.
Coleman’s lawyers had discovered that on Election Night, in some Democrat-heavy urban precincts, election officials had opened and counted a number of absentee ballots that did not strictly conform to the rules—ballots whose envelopes had been signed in the wrong place, for example. Coleman’s lawyers were now demanding that similar rejected absentee ballots from other counties be opened and counted. His campaign claimed to have discovered some forty-four hundred such rejected absentee ballots—ballots that, Franken’s lawyers, and the local press, noted, were drawn largely from rural precincts that tended to vote heavily for Coleman. The judges ultimately permitted the counting of three hundred and fifty-one rejected ballots, which increased Franken’s lead by eighty-seven votes.
Coleman’s team put more than twenty election officials on the stand, hoping to convince the justices that there had been significant differences in how absentee ballots were handled across the state, and that these differences violated voters’ equal-protection rights. In turn, Franken’s lawyer Kevin Hamilton argued that any discrepancies among the counties were the result of the routine errors that occur in every election—and did not rise to the level of an equal-protection violation. “No election is perfect; imperfections, precinct-level math errors, and paperwork confusion occur in every election and they occur in every county in the state and every state in this nation,” Hamilton said. “Our democracy doesn’t demand machinelike, antiseptic perfection.”
On April 13th, the contest panel unanimously rejected Coleman’s equal-protection argument and declared Franken the winner. Coleman announced that he would appeal to the Minnesota Supreme Court.
During the seven weeks between the end of the Election Contest and the Supreme Court hearing, Franken tended to avoid the press, but on May 31st, the day before the oral arguments, he invited me to visit him and Franni at their condominium apartment, in a semi-detached brick town house with castle-like corner turrets, a ten-minute walk from downtown Minneapolis.
Franken was clearly using all his actor’s experience to seem measured and senatorial, but his frustration was palpable. Perched on the edge of a settee, his elbows on his knees, he said, of the Senate, “I definitely would love to be there now—I would love to have been there for a while.” Of the endless suspense, he said, “It’s been so long that, in our lives, it’s sort of become the new normal.” He let out a loud but mirthless cackle.
Franni, who had curled up in a nearby armchair, said, “Yeah, for us the campaign never ended!”
Franken said that in early January he had decided to conduct himself as if his eventual seating were simply a matter of time, and had been duly meeting in Washington with people who could teach him about Senate procedure, and travelling around Minnesota, talking to constituents. He had been reading the newspaper very thoroughly. Mostly, though, he had been fund-raising, in order to pay his lawyers. So far, the recount battle had cost his campaign more than ten million dollars.
At nine o’clock the next morning, the justices filed in and took their seats. Many believed that the jurist most likely to be sympathetic to Coleman’s equal-protection argument was Justice Christopher Dietzen, who had been appointed in 2008 by the Republican governor, Tim Pawlenty, and who previously had given thousands of dollars to G.O.P. candidates, including Coleman. But it was Dietzen who opened up the most persistent line of questioning, zeroing in on the Coleman team’s “offer of proof”—a stack of hundreds of photocopied absentee-ballot envelopes. The photocopies purported to show that lax standards for rejection had been used in the cities, strict standards in the rural and suburban precincts—and that the discrepancy was so widespread as to require the remedy of now opening thousands of illegal ballots. But the Coleman team had included ballots from less than half of the state’s eighty-seven counties, had provided no voter testimony to explain the circumstances under which they were cast, and no specific testimony from election officials as to why they were accepted or rejected. (In some instances, an absentee ballot might not have been counted because the voter was able to make it to the polls.) Dietzen did not appear impressed, saying, “In my experience, I’ve never seen an offer of proof like this.”
On June 30th, the court ruled unanimously for Franken. Two hours later, Coleman conceded. He also called Franken, who later told reporters, “I thought, This is nice. This is a nice way to end this.”
It was getting past 9:30 A.M. and Franken’s staff-and-constituents breakfast was winding down. But Franken was lingering. A female staff member who will be based in Franken’s Minnesota office told him that her husband was on the phone and just wanted to say a quick hello. Franken took her proffered cell phone.
“Hey, Rick,” Franken said. “I was thinking of you.” He listened for a moment. “O.K., I wasn’t. I just tell everyone that. They feel good for a second and then I tell them I wasn’t. Then they laugh.” He let out his own noisy laugh. They talked for a couple of minutes, then he said, “O.K., I’ll give you back to your wife. And, really, I was thinking about you.”
McIntosh appeared and pointed across the room. “You have new guests,” she said.
They were a family from Wisconsin, a middle-aged woman, her husband, and their two teen-age kids. Franken invited them to try the wild-rice porridge. “We have bowls,” he said. “We have spoons. Just try it.” The woman agreed to take a bowl.
“So where in Wisconsin are you from?” Franken asked her.
“Green Bay.”
“I’ve heard of it,” Franken said, and the woman laughed.
She said that she loved his work on “Saturday Night Live,” and asked where she could see more of it.
“YouTube,” Franken said. He seemed ready to continue talking for as long as the woman liked, but Littman, who had been pacing nearby, suddenly appeared at his elbow. “I’ve got to pull you into your office,” he said, “and start going over the votes. O.K.?”
“O.K.,” Franken said.
He excused himself, and the two men disappeared into Franken’s office and closed the door.
