Minnesota Supreme Court Hearing: They Can Certify Franken Now...Or Wait Months
The Minnesota Supreme Court just finished hearing arguments in Al Franken's lawsuit to obtain an immediate certificate of election, and it has become clear that the court faces a very tough choice: Issue an election certificate now, which would have a theoretical chance of being undone later by pending litigation, and to do so against the commonly-understood meaning of state statutes -- or have Minnesota go without two seats in the Senate for months.
The justices grilled everybody involved. Justice Paul Anderson asked lead Franken lawyer Marc Elias whether the certificate is truly necessary, and whether the court has to intervene. "The Senate has plenary authority to seat whoever they want," Elias replied. "They could declare me the next Senator. But like this court, the Senate has rules."
Elias' argument is that the Senate has rules pertaining to certificates of election, as we saw in the Roland Burris case, and that Minnesota is unconstitutionally shirking its obligation to send a certificate in time for the Senate to meet.
Coleman attorney James Langdon complimented conservative Justice Lorie Gildea for questioning Elias on a matter of prior case law -- only to get his own tough questions from Gildea, about how the case she pointed to involved another state where the certificate was issued while a dispute was ongoing. Langdon's response was that Minnesota has chosen to create its own election code in a different way, and has that authority.
"Unlike the situation in Bush v. Gore, there is no federally mandated deadline here," said Langdon. In short, he said, state law validly requires that the certification process keep on going -- and the Senate can seat whoever it wants, anyway.
That case was enhanced later when Gildea asked state Solicitor General Alan Gilbert what the government means when they say a final judicial determination is necessary. Gilbert said that this included all appeals, and not just the initial verdict of the three-judge panel.
When Elias came back for final questioning, he seized on this point in order to express the sheer gravity of the situation. "I was most struck by the argument of the attorney general that not only will we have a multi-month trial," Elias said, laying out how long such a process would take, "and that the state of Minnesota will simply opt out of the constitutional structure of having two United States Senators."
"The nation faces issues of war and peace, of economic crisis," Elias said, detailing how the absence of a Senator is causing serious national harm. "For want of a vote, a stimulus package may be lost."
Josh
Matt
Eric
Brian
The questioning was tough on both sides with Franken's lawyer arguing that any voter can file an election contest. theoretically holding up the seating of a US Senator indefinitely.
The attorney for the State didn't help Coleman's clause by arguing no certificate, or provisional certificate can be issued ever, period, as long as an election contest is pending including all appeals.
That being said, the plain language of the relevant statute seems to prevent the issuance of the certificate and the Supreme Court could just punt the issue back to the legislature.
February 5, 2009 11:48 AM | Reply | Permalink
Coleman is going to win this and hold Franken out of the Senate for months. And then they'll try to make the case in the media that Gov Pawlenty should name a place holder to represent Minnesota in the senate, knowing full well Pawlenty would name a Republican.
I wish the Senate would be more involved and raising a publicity stink here.
February 5, 2009 11:53 AM | Reply | Permalink
Geez, I wish we had somebody other than Harry Reid as Senate Majority leader at a moment like this.
February 5, 2009 12:05 PM | Reply | Permalink
If the Rethugs were in the majority, and Franken was the one battling from behind, Coleman would have been seated two weeks ago. They know how to play hardball; apparently the Dems still don't (and never will with a Milquetoast like Reid "in charge").
February 5, 2009 12:12 PM | Reply | Permalink
February 5, 2009 1:32 PM | Reply | Permalink
Or better yet, at ANY moment.
February 5, 2009 2:23 PM | Reply | Permalink
At the pace they're going, months seems optimistic. The MN-SC is in a tough spot here, but I think in the end they will find a way to not allow Coleman to abuse the process to delay this indefinitely. As I suggested in another thread, one option would be for them to intervene in the case and tell him to stop stalling around and if he's got a case let's see it, because so far he's offered bupkis in the way of evidence for his claims. There is legal justification for stopping a suit where the plaintiff is being dilatory.
February 5, 2009 12:07 PM | Reply | Permalink
Unfortunately the three judge panel is really the reason for the months long delay. They are requiring Coleman to "individually" introduce up to 4800 ballots. That will take months.
February 5, 2009 12:38 PM | Reply | Permalink
No. Years.
February 5, 2009 12:50 PM | Reply | Permalink
The make-up of the state senate and house are both about 2:1 Democrats over Republicans. If Franken doesn't win on this motion, it's time for the state legislature to pass a law requiring an election certificate be issued to the person with the highest vote count within a date certain after the election, retroactive to this election, revocable by a final court order, meaning when the last appeal is over.
February 5, 2009 12:17 PM | Reply | Permalink
I like that idea. However, do you know the veto override requirements? I bet paulenty vetos.
February 5, 2009 12:27 PM | Reply | Permalink
There are not enough Democratic-Farmer-Labor members in the state House of Representatives to override a veto. And no Thugs would cooperate, that is a given.
February 5, 2009 4:04 PM | Reply | Permalink
It seems to me the easy way for the MN SCt to resolve the issue would be to declare the statute in question unconstitutional for denying the people of MN senatorial representation as contemplated by the US Constitution. Then they can answer the question who got the most votes in this contest and order the Sec. of State to issue a certificate to someone. I know it is a tad more complicated than that, but I think that is a fair summation of a solution that wouldn't take all that long to give the people a Senator.
February 5, 2009 12:20 PM | Reply | Permalink
What is the political (partisan) makeup of the court?
February 5, 2009 12:25 PM | Reply | Permalink
Five are Pawlenty appointees. Paul Anderson is a Carlson (R) appointee. Page won election to an open seat. On the liberal side of the court I would put Page and Paul Anderson. On the conservative side I would put Gildea and maybe Meyer. Gildea probably has the most partisan inclinations of anyone on the court. Otherwise, there’s not a whole lot of ideological difference between the Pawlenty appointees.
Minnesota does not have a history of partisanship in judicial selections. Even though they are allowed to, the SC judges don’t seek party endorsements.
February 5, 2009 1:06 PM | Reply | Permalink
Not knowing the Minnesota law, I have a few thoughts:
First, the notion that "all appeals" must be exhausted prior to certification strikes me as a ludicrous position that the court could reject for the simple reason that it's not the standard in most other circumstances. The judgment of the first court is a final judgment that is presumptively correct unless it is overturned.
For instance: if the FTC challenges a merger and loses, unless the FTC gets an injunction from a court of appeals, the parties are free to merge and don't have to wait for all pending appeals to be resolved (though they take significant risks if they don't). Likewise, if you are convicted of a crime, you go to jail even if you are appealing, unless, again, the trial court or the court of appeals intervenes and stays your sentence.
Second, it's understandable that this panel doesn't want to be stuck with a political hot potato, but they have been, and therefore, it's their job to impose order on the process. This means that they need to stop allowing the possibility of speculative arguments to be made over and over again without resolution.
Allowing Pawlenty to submit a placeholder sounds extraconstitutional (state constitution), and the United States Senate would be justified, IMHO, in not seating such a person -- who was not selected in conformity with any proper state process.
It was a close election. That's all. Unless Coleman has compelling evidence that the recount was improper, Franken wins. For instance, it sounds like the 4800 absentee ballot issue was raised more or less for the first time in the last 10 days. It's crazy for a court to allow itself to be used like this.
February 5, 2009 1:42 PM | Reply | Permalink
It IS crazy for the court to allow itself to be used like this. Apparently they bought the Coleman legal pitch---you just never can tell with judges when it comes to election law.
Almost 60% of the electorate didn't want either Franken or Coleman, so it's not like there's a groundswell of support for Al to be seated. The trick suggested by Coleman's lawyer, for the Senate to declare a vacancy and have Pawlenty appoint a Thug to the seat . . . runs into a sticky issue: would it be proper for Pawlenty to re-appoint Coleman when it is far from clear that Coleman won the election? If Pawlenty appointed some OTHER Republican, would that person be expected to step aside should Coleman end up winning the legal contest? Maybe they could all agree to have Barkley appointed again, with the understanding that he would resign in favor of whoever wins the legal contest.
I second the comments about Senator Milquetoast Reid. Can we contribute to his opponent in the Nevada election? I don't care if it's a Republican---Reid has got to go!!!
February 5, 2009 4:02 PM | Reply | Permalink
The Senate needs to seat Franken provsionally even if they need to change their rules to do so.
The Republican'ts wouldn't hesitate to change the rules. I believe it takes only a majority of the Senate to change the rules.
February 5, 2009 6:42 PM | Reply | Permalink
"For want of a vote, a stimulus package may be lost."
Maybe THAT is why this is getting so drawn out?!?
February 6, 2009 3:45 AM | Reply | Permalink
Obama should get off his azz and get reid to seat franken.
who cares what comes next fro m the repigs?
just do it!
and get that wimp reed out of power.
February 6, 2009 8:07 AM | Reply | Permalink