Minnesota Supremes To Franken: No, We're Not Giving You A Certificate
The Minnesota Supreme Court just handed down their opinion on Al Franken's lawsuit to force the state to issue him a certificate of election -- and it's a unanimous No:
It is our legislature that is charged by both the federal and state constitutions with the authority and responsibility to fashion the processes for the election of United States Senators from Minnesota. The legislature has done so and has clearly chosen not to authorize issuance of a certificate of election until an election contest is completed. Franken has failed to establish that either the United States Constitution or federal statutes mandate the issuance of a certificate of election immediately. In the absence of such a mandate, overturning a legislative choice in order to maintain comity with a federal scheme is not within our judicial powers.
The remaining question, then, is when does somebody get a certificate? When does a "court of proper jurisdiction," as the law terms it, decide the case? The court cites prior case law declaring "the term 'proper court' in the same section applies to the state court which is given jurisdiction." This appears to suggest that a certificate could be issued after this goes through state court -- and not an onerous federal appeals process as the state's solicitor general said during oral arguments in this case.
However, the possibility would still exist of federal appeals placing an injunction against issuing a certificate -- so who knows.
This line has to be the cruelest cut for Franken. The opinion also says that Franken is not being hurt by the lack of a certificate -- the Senate can seat him if it wants:
In other words, if the Senate believes delay in seating the second Senator from Minnesota adversely affects the Senate, it has the authority to remedy the situation and needs no certificate of election from the Governor to do so. We cannot conclude, therefore, that the Minnesota Legislature's choice to defer issuance of a certificate of election until the full state election process has run its course unconstitutionally usurps the Senate's authority.
Of course, Senate Republicans are saying they'll block any attempt to suspend the rules and seat Franken without a certificate, even if theoretically the Senate has the power to do so. Remember all that fuss the Democratic leadership made over Roland Burris, demanding that everything be checked out on his credentials? Oy.
Josh
Elana
Matt
Eric
Al doesn't need certification signatures. Once the MNSC boots Coleman's appeal, the Senate should move to seat him. One would hope the fed judges won't touch this. And anyway, wouldn't it go from the MNSC to the SCOTUS? At some point, TPaW and their Sec of State will have to sign.
March 6, 2009 3:37 PM | Reply | Permalink
Nah, they're Republican tools. And they can always say "let the courts run their course - we're a nation of laws afterall". And if the Dems raise a stink about Minnesota needing two Senators, he'll simply say "Let me seat somebody for the time being - neither Coleman or Franken" of course it would be another Republican stooge.
Franken can't win here, he just has to ride out all the appeals.
March 6, 2009 3:48 PM | Reply | Permalink
The direct appeal would go from the Minnesota Supreme Court to the United States Supreme Court. Coleman also doesn't have an appeal as of right to the United States Supreme Court; he would need to convince them to grant certiorari.
Eric is correct, though, that Coleman could file a separate civil rights action in federal court collaterally attacking the election results. If he did so, then he could seek an injunction against the issuance of the election certificate. I doubt Coleman will go this route, though, and I doubt even more than a federal district court would issue such an injunction.
(Although maybe Senate Republicans will convince Coleman to do it, if they think it will given them adequate political cover to filibuster Franken even after he gets his certificate of election.)
March 6, 2009 4:28 PM | Reply | Permalink
I'm with you part way here but under what mechanism does Coleman take a final judgment in state supreme court directly to the federal Supreme Court and expect anything but a denial of certiorari on procedural grounds, i.e,., go start at the bottom rung? Where do you get federal jurisdiction in the first place? Does Coleman argue equal protection, like Bush? Didn't Bush v Gore have to proceed through the lower federal courts? If federal jurisdiction could attach, even theoretically, doesn't Coelman likewise have to start out in federal district court, then Franken challenges on jurisdictional/10th Amendment grounds anyway?
I'll go out on a limb here and say that under the 10th Amendment, the MN SC opinion is finality. I don't think there will be grounds for a federal injunction AT ANY POINT -- Coleman can't show likely success on the merits or immediate, irreparable harm because Franken could always be removed. At best, a federal district court will take the case, because it has to, and bounce it, because it wants to.
March 6, 2009 5:11 PM | Reply | Permalink
Yes. I think it would be an equal protection argument.
No. Bush v. Gore went from the Florida Supreme Court to the United States Supreme Court.
The Minnesota Supreme Court is the final word on the interpretation of the Minnesota Constitution and Minnesota law. If there's a violation of the United States Constitution or United States statutes, though, that trumps Minnesota. Article VI, Sec. 2 (Supremacy Clause).
I agree. Even if the federal district court denies the injunction, though, perhaps the Republicans would still use the pending action to argue Franken shouldn't be seated. That seems like a bad argument to me, but many arguments made by Republicans seem bad to me.
March 6, 2009 5:34 PM | Reply | Permalink
seat him!.
who the hell cares what the republicans want?
they have shown their ONLY intention is to bring down Obama presidency.
time to stand up to them because Obama made the mistake of showing them there is no penalty to do or say anything they want.
enough is enough!
March 6, 2009 3:41 PM | Reply | Permalink
Can this story - and all of its footnotes and tributaries - please die?
March 6, 2009 3:43 PM | Reply | Permalink
What's the precedent here? Has a Senator or Rep ever been seated without a certificate?
And will this have to go before the US Supreme Court?
March 6, 2009 3:45 PM | Reply | Permalink
And anyway, wouldn't it go from the MNSC to the SCOTUS?
Not necessarily. Coleman could petition the SCOTUS to hear the case but they could decline (as normally would be the case). He could then file an action in federal district court contending that the Minnesota electoral process violated the US Constitution. What is most likely to happen is that the court now hearing the case will finish testimony and argument, declare Franken the winner and issue a certificate. Coleman then can ask the Minnesota Supreme Court or a federal court to rescind by writ of mandate that certificate until all appeals have been exhausted but that is unlikely to happen. Once no writ of mandate is issued, The US Senate would be following their own rules in seating Franken.
Could the US Senate seat him now? Sure but their own procedures require a certificate and since they required one for Burris, it would look somewhat hypocritical for them to seat him until a Minnesota certificate is obtained.
March 6, 2009 3:56 PM | Reply | Permalink
The moment Reid and Durban started making noise about needing the certification for Burris, I knew they'd shot themselves in the foot regarding Franken.
sigh.....
March 6, 2009 3:52 PM | Reply | Permalink
Fortunately, they caved on Burris and set a precedent that actually supports seating Franken.
March 6, 2009 3:55 PM | Reply | Permalink
Fortunately, they caved on Burris and set a precedent that actually supports seating Franken.
Not really. The Illinois court said that it couldn't compel the Secretary of State to issue a certificate and that, in any case, a certificate wasn't needed under Illinois law. Minnesota, on the other hand, has an explicit procedure for issuance of a certificate, a procedure that isn't finished yet
March 6, 2009 3:58 PM | Reply | Permalink
You might have misunderstood what I wrote. The Burris precedent doesn't go to whether Minnesota should issue an election certificate. It goes to whether Senate Rule II requires an election certificate signed by the Governor and the Secretary of State.
Senators Reid and Durbin initially asserted those are the requirements of Rule II, but they caved and seated Burris without a certificate of election signed by the Illinois Secretary of State. (The Secretary of State, or his office, signed only a separate document certifying a copy of the unsigned certificate of election; he never signed the actual certificate of election.)
This sets a Senate precedent that the provisions in Senate Rule II, Sect. 2 do not set strict requirements for the credentials that the Senate must receive. If Burris can be seated with a certificate unsigned by the Illinois Secretary of State, then Franken can be seated with a certified copy of the State Canvassing Board's declaration of the election results.
March 6, 2009 4:07 PM | Reply | Permalink
As it was an unsigned pro curiam decision (i.e. unitary, rather than unanimous), it's better to say that the court handed down "its" decision, rather than "their."
That it was issued this way is itself worth noting, as pro curiam decisions tend to "deal with issues the Court views as relatively non-controversial."
http://topics.law.cornell.edu/wex/per_curiam
March 6, 2009 3:58 PM | Reply | Permalink
I don't think this falls into the category of non-controversial per curiam opinions. Those are usually routine orders issued by the prothonotary of the clerk of courts.
Another reason courts sometimes issue an opinion per curiam is because the decision is highly controversial and the authoring judge doesn't want to be publicly identified. For instance, a judge that I used to clerk for once issued a opinion per curiam because one of the litigants was a crackpot who was making threats against the court.
March 6, 2009 4:16 PM | Reply | Permalink
I don’t agree that the Senate would need to suspend its rules to seat Al Franken. I keep seeing people assert that the Senate would need to do so, but no one has yet shown me a Senate Rule that requires a certificate of election. Here's a link to the Standing Rules of the Senate. If anyone can find a rule that requires the certificate, let me know.
The relevant rule is Senate Rule II. Section 2 of that Rule requires the Secretary of the Senate to record certificates of election and section 3 provides a recommended form, but nothing in Rule II expressly requires a certificate of election. At least, that's how the Illinois Supreme Court reads Senate Rule II, and that's how I read it too. Of course, only the interpretation of the U.S. Senate ultimately matters, but no one has yet pointed me to any vote to the contrary in the Senate.
Further, Al Franken can get Minnesota to provide a certified document stating that he received the most votes in the election. All that he needs to do is ask the Minnesota Secretary of State to provide him with a certified copy of the state canvassing board's declaration of the results. I believe that is basically all that a "certificate of election" is in most states. Minnesota just has a quirk in its election laws that provides that it doesn't issue a document called a "certificate of election" until the election contest is over.
March 6, 2009 3:58 PM | Reply | Permalink
Eric
You state:
The remaining question, then, is when does somebody get a certificate? When does a "court of proper jurisdiction," as the law terms it, decide the case? The court cites prior case law declaring "the term 'proper court' in the same section applies to the state court which is given jurisdiction." This appears to suggest that a certificate could be issued after this goes through state court -- and not an onerous federal appeals process as the state's solicitor general said during oral arguments in this case.
The answer here is simple. The "court of proper jurisdiction" is the court which Minnesota election law specifies as the court in which a "contest" is to be heard. That court (the court of proper jurisdiction) is the Election Contest Court. As soon as that court makes its determination as to which candidate received the most valid votes, an election certification can be issued -- even if the ruling of the Minnesota Election Contest Court is appealed to the Minnesota State Supreme Court. End of discussion. Now big questions. Final. Minnesota election law is clear that the certification can be issued once the appeals process specified by the law have been played out. I will wager that I am correct on this
March 7, 2009 10:44 PM | Reply | Permalink
Will Burris and Franken ever be in the Senate together?
March 6, 2009 4:11 PM | Reply | Permalink
This is a good decision. I mean, it's good in the sense that it will get the state to solve the problem: allow the recount winner to be seated until the contest has ended.
Seriously. I don't know what other states do, but there is nothing more annoying than this statute. It calls for a mandatory recount. This takes forever (as people literally hand-count votes). Then, it alows the loser to contest, for weeks and weeks and weeks, the result.
The law needs to change. State Democrats cannot change anything right now in the Franken case, but they can change the law for future cases (and they can override a Pawlenty veto). There's exhaustion from the public on this case. Slightly more than half see Franken as the Senator. Yet, we're stuck with Pawlenty on news shows. Don't allow an election contest to hold up the seating of the recount winner.
March 6, 2009 4:13 PM | Reply | Permalink
I agree that the law needs to change.
I also think that Eric correctly identified another silver lining in the opinion: the court limited "finally determined" to the state appellate process. That means that Senator-elect Franken should get his certificate of election after the direct appeal to the Minnesota Supreme Court. He won't have to wait for an appeal to the United States Supreme Court.
March 6, 2009 4:20 PM | Reply | Permalink
The MN legislature needs to change the law that requires all of the litigation to be completed before a certificate is issued. There's one pending now. They should act on it.
Insanity.
March 6, 2009 4:20 PM | Reply | Permalink
Republicans are always afraid to do the right thing because it'll invalidate their long-held beliefs. Democrats are scared to do the right thing because Republicans frighten them.
March 6, 2009 4:21 PM | Reply | Permalink
One thing I have to admit, looking back, and knowing the extent to which Republicans are willing to let everything crash and burn around them for power - can we imagine if Al Gore had decided to fight tooth and nail over the FL Recount?
Can you imagine if we had been dragged through this amount of bull on a Presidential level? I think very few people who pay attention to politics would argue that Bush's cronies would be just as obstructionist and ridiculous as Coleman's team is being. If Gore had refused to concede, we know Bush wasn't going to.
That's not to say it was necessarily a "good" thing Gore stepped aside, because he did win that election, after all.
But just as a conceptual exercise, it's scary to think if what might have happened if we saw a prolonged court battle like this for the Presidency. Take special note if this goes to federal court and drags all the way until...September. Imagine THAT scenario possibly playing out. Horrifying.
March 6, 2009 5:05 PM | Reply | Permalink
The U.S. Supreme Court ruled against him. Where else was he going to go to fight?
March 6, 2009 7:02 PM | Reply | Permalink
First, a question for Eric, or anyone else following the actual pleadings of the trial: Isn't this a response to Franken's motion filed at the beginning of the trial, not a response to his recent motion for a directed verdict on some or all of the various counts?
It seems to me this is (partly)a pretty straightforward decision by the court saying it doesn't have the authority to issue a certificate, which is what it was asked to do. I think that's right. At the end of the case, this court will not issue a certificate. It will rule that Franken won the election. Then it's up to the SoS to determine if and when a certificate should be issued.
At the conclusion of this trial, Coleman can appeal to the Mn. S.Ct, which, may be able to refuse to take the appeal, but I suspect they will 1) take it, and 2) rule pretty quickly to affirm the trial court. As I've written before, I don't think there is much chance that the SCOTUS will go anywhere near this case, and will deny cert. without comment.
If the SoS does not issue a certificate after the Mn. S.Ct. rules, then Franken can sue the SoS to issue the certificate, and that decision will be issued very quickly.
Any new case filed in Fed. Dist. Ct. would be a collateral matter, and the court should not issue an injunction, and the SoS need not wait to issue a certificate. Once a cert. is issued, I suspect Coleman will fold.
March 6, 2009 5:15 PM | Reply | Permalink
Yes. They are different. This is the Minnesota Supreme Court's response to Franken's request that they order Minnesota to issue him a certificate of election before the election contest ends.
The recent motion to dismiss was Franken's request that the panel hearing the election contest (not the Minnesota Supreme Court) decide that Coleman has failed to meet his burden.
March 6, 2009 5:40 PM | Reply | Permalink
Simple minded little me.
As far as I've understood this quagmire, the Court's only purpose was to decide which candidate received the most legally casted votes. Once they decide who got the most, the State's Secretary of State and Governor do their thingy and produce a certificate for the one who is designated by the Court as having received the most legally casted votes.
This is about as exciting as watching a tree grow. Eventually this will end, but no telling what the tree will look like. We think it might be an oak, but there's a possibility it may be a weeping willow.
March 6, 2009 5:18 PM | Reply | Permalink
This is the MNSC telling Franken, no, you have to wait until the special 3-judge court makes its ruling. Franken was trying to go over their heads and have a certificate before they ruled.
The 3-judge panel still has Franken's motion to dismiss in front of it. I don't know, can anyone tell me if this is the same as asking for a directed verdict?
March 6, 2009 5:26 PM | Reply | Permalink
They're completely separate actions. Coleman filed the election contest that went to the 3-judge panel and will later be appealed to the MN-SC. This ruling is Franken's filing before the MN-SC to have them direct the issuance of a certificate immediately.
March 6, 2009 5:32 PM | Reply | Permalink
The justices wrote in their unsigned opinion that "if the Senate believes delay in seating the second Senator from Minnesota adversely affects the Senate, it has the authority to remedy the situation and needs no certificate of election from the Governor to do so."
If this is true, WHY isn't the Senate doing something about this? Mr. Reid...Oh, Mr. Reid????
March 6, 2009 5:32 PM | Reply | Permalink
A few points I have to make here:
-I do not believe it would be necessary to suspend the Senate's rules, as suggested upthread. I agree it is not a stated rule that Franken must have the Governor's and SoS's signatures BEFORE he can be seated. Tradition, yes. However, Rule 2 states that those signatures must be merely recorded in a log book or whatever it is. No statement of WHEN it has to be recorded.
-Of course, this makes Harry Reid look even more stupid for saying they were required before the Senate could seat Roland Burris. Fuddlenuts, is a word that comes to mind.
-Also, as much as I am disappointed in this decision for Franken and my fellow Minnesotans; after reading the opinion, I agree with the Justice's logic.
-However, I do not see the last part you quote as necessarily a "cruel cut" for Franken. I see a glimmer of hope there. The Supremes just told Harry Reid to get off his ass. So what's the story, Senator Reid?????
March 6, 2009 7:19 PM | Reply | Permalink
I've been following the blind optimism here for awhile and it is surprising to me that anyone would expect the courts to do the right thing. The fix is in and Coleman will get his revote.
March 7, 2009 12:54 AM | Reply | Permalink
This has to be the slowest motion train wreck I've ever seen.
March 7, 2009 1:06 AM | Reply | Permalink
If I were a MN resident, I'd be polling neighbors about filing a lawsuit claiming that Coleman's frivolous continual motions have denied me my equal protection, namely the protection of having TWO US senators looking out for the welfare of the state. MN is currently at a disadvantage by not having full representation in the Senate, due ONLY to the protraction of this contest by Coleman.
This might not hasten the end of the legal wrangling, but it might serve as a kick int he ass after it is all over, maybe as a civil suit brought against Norm after it is all over...
March 7, 2009 11:21 AM | Reply | Permalink