With the unanimous vote of the bipartisan Minnesota Board of Canvassers against his demand for the counting of rejected ballots, Al Franken (D) is suggesting that he may ask the Senate (with a democratic majority) to simply order the counting of the ballots and hand him the victory over incumbent Sen. Norm Coleman (R-Minn.). It is the nuclear option in the Constitution and rarely used for obvious reasons.

Franken attorney Marc Elias argued that the Senate will be asked to intervene if the state officials to do yield to the demand for the ballots to be counted. Only a couple of hundred votes separate the two candidates. There were 12,000 disqualified absentee ballots but the Franken campaign is only interested in 1,000 of those ballots.

Article I, section 5 of the U.S. Constitution allows each congressional chamber to be the “Judge of the Elections, Returns and Qualifications of its own Members.” However, this is viewed as an extreme measure. Congress has historically allowed state officials to determine the outcome of their own elections. Congressional interventions invite mischief and manipulation by majority parties. It also tends to rob the process of credibility when it is viewed as a muscle play by a majority party. The fact that both Democrats and Republicans voted on the board against the position of the Franken campaign will make this more problematic. However, the Franken campaign can argue that the Board ruled that it did not have authority to reconsider such ballots and that such jurisdictional technicalities should give way to the need to count as many ballots as possible in such a close election.

There have been 141 major cases of contested elections and disciplinary cases in the U.S. Senate from 1793 to 1990.

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