Franken Brief Rips Coleman's Appeal, Calls For Certificate Of Election To Be Granted
I've now had the chance to read through the Franken campaign's rebuttal brief in Norm Coleman's appeal to the Minnesota Supreme Court, and there are a few themes that run through it. (Check out Rick Hasen's take, as well.) Coleman's arguments are derided as internally sloppy, inconsistent between each other, and overall a cause of harm to the state for delaying the seating of the rightful winner of the election -- Al Franken -- a situation that should be remedied as soon as possible.
"Even if this Court were to take Appellants claims at face value, each fails as a matter of law. In most cases, Appellants' claims are also barred as a procedural matter, and, even more fundamentally, they fail for simple lack of proof," the brief argues. "On each of these grounds, Respondent respectfully requests that the Court affirm the trial court and make clear that Al Franken is entitled to receive the certificate of election."
Examples of alleged sloppiness by Team Coleman abound in the Franken response. It's noted that the Coleman camp is claiming a violation of the Substantive Due Process clause in the trial court's handing-down of strict rules for accepting previously-rejected ballots -- but the problem here is that due process wasn't raised until late into the trial, and the "Substantive Due Process" phrase itself was not used until the closing arguments. Failure to properly argue a point would put it beyond possibility of appeal.
For another thing, they point to Coleman's frequent invocation of Bush v. Gore in challenging variations in the acceptance and rejection of absentee ballots across localities, despite the fact that the Supreme Court limited the Bush decision to those sole circumstances in Florida: "The [Supreme] Court even went so far as to exempt the very claim Appellants now raise: 'The question before the Court is not whether local entities in the exercise of their expertise, may develop different systems for implementing decisions.'"
As the best example of an accusation of inconsistency, Team Franken points to how Coleman wants to throw out the Election Night results from a Minneapolis precinct that lost an envelope containing 132 ballots during the recount, but were counted anyway -- saving Al Franken from a net loss of 46 votes. "Given Appellants' stated interest in enfranchisement," Team Franken says, "it is ironic that they still seek to disenfranchise these 132 voters."
Finally, The Franken brief asks for a certificate of election to be grated immediately -- overriding the traditional 10 days for Coleman, assuming he loses, to ask for a reconsideration of the decision. "For over four months," the brief says, "the citizens of Minnesota have been represented by only one United States Senator, and the effects of this delay are increasingly significant."
They go further and ask the court to state affirmatively order the Governor and Secretary of State issue the certificate at the end of state proceedings -- meaning this appeal itself -- and is not to be derailed by any potential federal court actions Coleman might pursue. We'll see how this all works out.
Josh
Matt
Eric
I think the request for injunctive relief (the certificate mandate) is very important. If the Court does order the Governor to issue a certificate, immediately or later, the Federal Court will be in that much more of a bind responding favorably to Coleman's appeal ie they'll be that much more hard pressed to stay the State Supreme Court's order on appeal
May 12, 2009 12:07 PM | Reply | Permalink
Questions for Minnesota Law mavens:
Can the MN Supreme Court actually order the Governor and the Secretary of State to issue that certificate? Can the Court assert, in its decision, that it falls under the jurisdiction of the State, and not the Federal government, to determine the outcome of MN State elections?
If so, can the Governor be held in contempt, if he doesn't comply with the Court's ruling?
For when (not "if") the Coleman team takes it to the Federal court system anyway... and I have said this in these pages a million times... the true jurisdiction over the seating of a United States senator falls to the United States Senate. Harry Reid may have said in the past that he would graciously wait for a certificate from the governor, but in terms of jurisdiction I have always been under the impression that he is under no legal obligation to do so. The Senate can seat whom it pleases, "certificates" be damned.
That is what must happen, if Coleman and Pawlenty choose to fly the pull-it-out-of-their-ass legal argument that nobody moves until John Roberts has had the last word, probably in 2010.
And who, in MN State government, would file a challenge against the United States Senate, at the point at which the Senate asserted its authority to seat whom it pleases: the Governor's office? The MN court system, which just ruled against Coleman? Would Coleman himself even have standing to do so?
At worst, if the Federal government itself, in the person of the Judiciary Branch, were to try to stop the Senate from seating Franken, pending a Federal court or SCOTUS decision, it would be nothing less than a challenge to the authority and sovereignity of the Legislative branch of the United States Government.
This is called a "Constitutional crisis", and the main reason I advocate the Senate's simply ending it, at that point, is because in a great game of chicken like this, I don't see even the Republicans supporting such a Constitutional crisis, when it would mean giving up their own power, just to have one less Democratic Senator (for however long they can pull that off).
May 12, 2009 12:34 PM | Reply | Permalink
The short answer is "yes". Most likely though court will wait for a definitive refusal to act before ordering that a certificate issue
What Franken is asking for in effect is for a writ of mandate
May 12, 2009 12:55 PM | Reply | Permalink
I don't think so. I don't practice in Minnesota, but as far as I can tell the State of Minnesota and Governor Pawlenty are not parties to this law suit. Courts have jurisdiction over the only parties before them. Consequently, I do not see how the Minnesota Supreme Court could order Minnesota or Governor Pawlenty to do anything or how either could be held in contempt for failing to comply with the order. At most, the Court could state in its opinion that the certificate should be issued.
Unfortunately, I think that if Pawlenty fails to sign the certificate, Franken will need to bring a mandamus action against him. That would give the Minnesota Supreme Court jurisdiction to order Pawlenty to issue the certificate.
Also, the United States Senate has the final word on who is seated. Nothing done by the Minnesota Supreme Court can deprive the Senate of its authority as Judge of the Election of its Members under Article I.
May 12, 2009 1:53 PM | Reply | Permalink
That's not exactly how things work.
Courts issue things like subpoenas to people who aren't already parties all the time. The court gains jurisdiction by the service of the subpoena. It just depends on what it's commanding them to do.
In any event, a new lawsuit or a petition for a writ with the governor as a party could easily be filed. (Isn't that what happened with Burris?) Regardless, the Senate can say, well, we're seating him because the certificate was unreasonably withheld.
May 12, 2009 3:37 PM | Reply | Permalink
Subpoenas are a bit different than an injunction in a final order. If you can cite me a case where a Minnesota or a federal court has upheld an injunction issued against a non-party, I'd be happy to take a look at it, but I'll be surprised if you can provide one. Even if the court believed it had jurisdiction over the non-party, such an order would strike me as violating due process on its face.
I agree that Franken could petition for a writ of mandamus. In fact, I mentioned that possibility in the post above.
May 12, 2009 4:10 PM | Reply | Permalink
I should qualify my comment above. I mean an appellate decision upholding an injunction against a non-party. I wouldn't be particularly surprised to see a trial court attempt to do this, but whether it would stand on appeal is entirely different.
May 12, 2009 5:02 PM | Reply | Permalink
Could the good citizens of Minnesota file a civil court class action lawsuit against Pawlenty if he refuses to certify Franken?
Isn't Pawlenty depriving them of their right to representation, if he personally creates a way for Coleman to navigate around state law (which ought to make every Minnesotan mad as a hornet) into the Federal Courts?
May 13, 2009 2:40 PM | Reply | Permalink
I'm not sure whether a Minnesota voter would have standing to challenge Governor Pawlenty's failure to issue an election certificate. Ordinarily, to have standing to bring a lawsuit, a litigant must have some interest that exceeds the general interest of the public at large. The interest of Minnesota voters strikes me as the same as the public at large. There might be some special rule in Minnesota for suits by voters though.
I don't think this a major issue, however, because I am certain that Senator-elect Franken will petition the court for a writ of mandamus if the court rules in his favor and the governor refuses to issue the certificate. It's just a matter of additional delay as we wait for events to unfold.
May 13, 2009 3:08 PM | Reply | Permalink
"to have standing to bring a lawsuit, a litigant must have some interest that exceeds the general interest of the public at large."
Wouldn't any registered Democrat who voted FOR Franken qualify then? While the public at large suffers due to lack of representation, anyone who voted FOR Franken has an interest including AND exceeding that.
Seems to me Pawlenty's no better than Blagojevich in terms of "pay to play."
One more case of a Narcissistic state governor imagining his solemn administrative duty is some sort of personal gift he can hand out to his choice of recipients, the electorate be damned.
May 13, 2009 3:28 PM | Reply | Permalink
I don't know. It might be enough, but I would need to research Minnesota law to answer. I'm curious, but I can't justify using my office's legal research services for that. Maybe a Minnesota practitioner, or someone with access to an academic Westlaw or Lexis account, will chime in and answer the question for us.
May 13, 2009 4:43 PM | Reply | Permalink
I am pretty sure that the state is in charge of who gets sent to the Senate. If the Senate tries to seat whoever it wants before the state decides, then I think that you've ignored the 17th amendment and then there would be a big problem.
May 12, 2009 1:17 PM | Reply | Permalink
But then, you haven't addressed my earlier question: if the MN Supreme Court says, "Franken is the winner, now go forth and issue a certificate please"... and Pawlenty says, "In your dreams!"... who decides who the "State" is? Who decides who makes the determination on behalf of Minnesota who gets sent to be seated?
And the pivotal question: if Pawlenty stonewalls the certificate (my guess: he will, absolutely) and the Senate seats Franken anyway, who on behalf of the State of Minnesota files the lawsuit, saying that the Senate has violated states' rights and the 17th Amendment? The MN court system? Which has already decided that Franken should be seated?
You gonna tell me the Secretary of State? At this point, the Court could start issuing injunctions, so that he simply can't do that. Heck, you could have a State Constitutional crisis, before this thing ever hits the Federal courts, over who gets to be "Minnesota", in the eyes of the law!
The point being, there is a path here to stop these people from doing what they're doing, which was never the intent of the electoral and legal system under which it is happening. Mainly, because nobody who ever helped make the laws of Minnesota ever dreamed there'd be anyone who would deliberately try to game the system like this.
The Coleman team and the Republican Party considered that form of graciousness to be a weakness, and that's why we are where we are today.
May 12, 2009 1:41 PM | Reply | Permalink
Now that's where it gets interesting--and I've got not answer but conjecture. What happens when the governor doesn't fulfill his obligation? It seems to me that the onus is on the state to get its act together and deal with it. But that could mean, would mean, more delay.
May 12, 2009 3:46 PM | Reply | Permalink
Considering the fact that the fulcrum of the whole Congressional teeter totter is at stake, "delay" may be their only objective.
Not the first time a "Delay" has plagued our Congress like a bad seed.
May 13, 2009 3:54 PM | Reply | Permalink
I think you've overlooked Article 1, Section 5, Cl. 1:
To my knowledge, nothing in the 17th Amendment overrides that clause. States elect their Senators, but the Senate is the final word on who gets seated.
May 12, 2009 1:56 PM | Reply | Permalink
You may be right, and, looking at your other replies, probably are. My understanding is that the Senate Rules Committee looks at the state certification and approves it usually with a perfunctory amount of scrutiny. It generally only acts once the state has decided, unless there's a contested election.
If Pawlenty doesn't act and fails to certify (assuming Franken wins), then I'm not sure what happens (Doesn't the Federal Contested Elections Act (FCEA) come into play after certification?). My guess is that you are right and the Senate Rules committee will have to make a decision and, if Coleman appeals, hear it.
May 12, 2009 4:19 PM | Reply | Permalink
I agree that, in practice, the Senate will defer to the state certificate. My point was that the Senate isn't required to do so; deference to the state certificate is merely a political choice. If you meant to discuss only what the Senate realistically will do (not what they theoretically could do), then I misread your post and apologize.
I can't pretend any familiarity with FCEA, but from a quick glance it looks to me like that statute applies only to the House of Representatives.
May 12, 2009 4:32 PM | Reply | Permalink
Hey, you are right about the FCEA. I should research before I write--at least part of the time.
That said, I've learned that senate.gov keeps an excellent record of past disputes (just summaries, not the nitty gritty) and procedures. It's actually quite fascinating, especially if you delve into the Civil War stuff:
http://www.senate.gov/artandhistory/history/common/contested_elections/intro.htm
Interesting subheadings are "Senate Procedure in Contested Elections", "Types of Election Cases", and "Vacancies".
May 12, 2009 5:45 PM | Reply | Permalink
That's a useful link. Thanks!
May 12, 2009 8:06 PM | Reply | Permalink
The key point I think you are overlooking is that the issuance of the certificate of election (an act wholly within the power and jurisdiction of the state of Minnesota) is not the same as admission into the Senate (which is the exclusive province of the Senate).
The person who points out that a mandate cannot issue because the Governor is not a party is correct. However, the Court may choose to bring Pawlenty in. Alternatively, the Court may simply add language that Franken is legally entitled to the issuance of a certificate, essentially telling the Governor that he has to do it, without specifically ordering him to do so.
My take on this: if the MN Supreme Court orders or implies that Pawlenty must issue the certificate, Pawlenty will do so. It would be severely damaging to his political ambitions in Minnesota if he defied his own state court. Plus, issuing the certificate doesn't end Coleman's appeals. IF the certificate issues, and IF the Senate seats Franken, and IF the U.S. Supreme Court reverses the MN decision, then Franken can be un-seated. More likely, the certificate would issue, the senate would be unable to get cloture, and there would be a tacit agreement to let the federal appeals play out before seating Franken.
Also very likely: the federal courts, and the U.S. Supreme Court, will not take this case, on the theory that it's up to the Senate to decide the controversy.
May 12, 2009 2:49 PM | Reply | Permalink
But DOES Pawlenty have any more political ambitions inside Minnesota? My impression is that he's already running for the ReThuglican nomination in 2012 & so will do what ReThugs want, primarily those OUTSIDE Minnesota.
May 12, 2009 9:33 PM | Reply | Permalink
even if his ambitions were for the nomination, i don't see how that puts pissing off the people in his own state on the table. especially when you consider that minnesota uses an open caucus rather than a closed primary. i don't see minnesota as a state that looks favorably on brazen self-serving partisanship.
May 13, 2009 9:41 AM | Reply | Permalink
Pawlenty/Palin 2012?
The Lilith syndrome might plague that ticket.
Instead of "Who's on First" it's "Who's on Top".
May 13, 2009 3:58 PM | Reply | Permalink
(I'm assuming "writ of mandate" is such an order?)
The sequence of events I suspect will happen is that the MN Supremes will decide in Franken's favor, and (if I'm reading you correctly) just wait for the guv to issue the certificate.
It is in that window of time in-between, that Coleman will file his Federal suit. Pawlenty would then turn around and say, "Well, my hands are tied!" The Coleman team will be spinning this aura of inevitability (meaning it's reality, as long as we can convince enough people that it is) that now that the Federal suit has been launched, the MN Supreme Court CANNOT order Pawlenty to do anything further, and Sen. Franken cannot possibly be seated, pending the last, bitter mile of this lawsuit in 20-whenever.
That's what I'm concerned about, if you get my point.
May 12, 2009 1:26 PM | Reply | Permalink
Once Governor Pawlenty says, "Well, my hands are tied!" Franken can petition the Minnesota Supreme Court for a writ of mandamus. Pendency of an action in federal court won't prevent the Minnesota Supreme Court from issuing a writ, unless Coleman persuades the federal court to issue an injunction. I don't believe that Coleman can meet the requirements for an injunction.
May 12, 2009 2:01 PM | Reply | Permalink
Okay, which ones? Can't he argue that irreparable harm is done if Franken is in there casting votes?
May 12, 2009 3:20 PM | Reply | Permalink
I don't think that Coleman can satisfy any of the requirements for a preliminary injunction.
1. Likelihood of success on the merits. I think that Coleman's equal protection and due process claims are bunk. Personally, I wish the case law favored him more -- because then Democrats could effectively challenge disparate distribution of voting machines -- but I don't think it does.
2. Irreparable harm. The issue before the court will only be the issuance of the certificate of election, not the ultimate seating of Franken. The harm that you postulate -- Franken casting votes -- occurs only if the Senate chooses to seat Franken. The Senate is fully capable of seating Franken with or without the certificate of election. The decision on whether to seat Franken lies solely within the authority of the Senate. Also, I am not sure whether Coleman can even assert irreparable harm from Franken casting votes. That strikes me as harm, if at all, to the people of Minnesota, not to Coleman personally. To the extent that Coleman can assert that injury, Franken can also assert the exact same injury because an injunction deprives him of the ability to cast votes.
3. Balance of the Equities. Coleman failed to object on election day to many of the practices that he claims create an equal protection problem. To my thinking, that tips the equities against him. Even if not, I still don't see a persuasive argument that the equities favor him.
4. Public Interest. Every day that Franken is not seated, the people of Minnesota are deprived of full representation in Congress.
To get the injunction, Coleman has to persuade a federal district court on all four of these requirements. That means that you have to believe that I am wrong on all four in order to believe that Coleman is likely to get an injunction.
May 12, 2009 3:57 PM | Reply | Permalink
Hi, QuiteAlarmed, and thanks for the thorough discussion. Nicely done!
Okay. If I'm a chest-thumping, Bush-loving, Fox-listening jurist like Scalia, I may have trouble getting my fellow Justices to see it in the proper light, but it may go like this for me:
1. Likelihood of success on the merits. "I think that Coleman's equal protection and due process claims are bunk." This was all "bunk" in Bush v. Gore according to that wiseacre Stevens (and that preachy Breyer!), and even though the colorful case had limited precedential value by its terms, I may take smug satisfaction in going down the same, result-oriented Republican path for the good of the country and because I was actually right back then.
2. Irreparable harm. "The Senate is fully capable of seating Franken with or without the certificate of election. The decision on whether to seat Franken lies solely within the authority of the Senate." *Solely* may be an Overreach, and this may be your weakest point. If I, as Justice, allow this miscarriage to go forward, he results as to the Senate's actions are predictable. Me and my Fox-tuned remote control are the only thing keeping that horrible, anti-American comedian from being seated as a practical consequence, because he's on his way to the races as soon as he gets that certificate, despite what you say. Plus it affects the character of the Senate (would deny a legislator like Jeff Sessions the right to filibuster), so it's a pretty key point. "Also, I am not sure whether Coleman can even assert irreparable harm from Franken casting votes. That strikes me as harm, if at all, to the people of Minnesota, not to Coleman personally." Interesting argument, and yes, a potential winner. I probably can get past this by telling myself how long poor Norm has been denied, the harm that the dingenuous lout has sustained already is insufferable, burden upon is family, etc. I somehow have to look past his upcoming criminal trial, too, though. Hmmnn... Well, maybe that's an irrelvancy, not raised or something. "To the extent that Coleman can assert that injury, Franken can also assert the exact same injury because an injunction deprives him of the ability to cast votes." Another good one, but since (if we are honest) Franken is a public enemy ("sad day for America" gravely intoned my hero, Bill O'Reilly as to his election), I can probably regard this as fatuous and move on, when I see that a statesman with a record in the Senate like Coleman is being denied his seat. Besides, the injunction will be useful in that it only preserves the status quo.
3. Balance of the Equities. "Coleman failed to object on election day to many of the practices that he claims create an equal protection problem." Well, I have to be a really result-oriented hero-of-the-bench to get past this one, don't I?! :(
Still, this is my big moment, reason I was appointed in '82 by the Gipper himself http://content.usatoday.com/_common/_scripts/big_picture.aspx?width=490&height=304&storyURL=/news/washington/judicial/2008-05-11-appellate-judges_N.htm&imageURL=http://i.usatoday.net/news/_photos/2008/05/11/appealsx-large.jpg, chance to do something for the country, and as I look at the complexity that Norm faced (what could be expected of him in reality when he seemed to have just won the election?), his dedication to public service, the latest Hannity invective, plus Rush that I listened to, I can see how Norm who didn't make porn jokes is getting a raw, raw deal as he may not have understood some of the technical issues of voting machines. It's a stretch, but as I think about Mrs. Reagan in her old age, I can go with Norm on this one, too. "Even if not, I still don't see a persuasive argument that the equities favor him." Your judicial analysis may not be informed by the same talk radio stations I have playing in my chambers. Open your horizons!
4. Public Interest. "Every day that Franken is not seated, the people of Minnesota are deprived of full representation in Congress." I notice you don't mention, though, the fact that he is porn-loving comedian and not from the real America that Governor Palin has spoken of?
Too glib?
Well, the real public interest is not in rushing through this with seating the smart-mouthed Playboy writer, but in having this placidly determined, in an orderly Judicial process by another kooky 5-4 decision with all sorts of oddball concurrences, dissents, recriminations, and maybe drinks with Cheney.
Franken can wait another few months or so, no?
* * * * *
Again, thanks for the discussion! :)
May 13, 2009 1:26 AM | Reply | Permalink
My answer to that is: “Go for it! No, please go for it!” When the Republican Supreme Court justices wrote Bush v. Gore, they tried to carefully thread a needle. They wanted to give the presidential election to George W. Bush, but they didn’t want to open up a floodgate of equal protection litigation about the local differences at the polls. That’s why they tried to limit the decision to its facts. That’s also why they repeatedly stated throughout the opinion that local differences don’t create an equal protection problem. Coleman’s equal protection and due process claims are specifically about local differences. If a federal court sides with Coleman, then those floodgates are wide open. I believe that’s going to help Democrats far more than the immediate seating of Al Franken. Many local disparities – like uneven distribution of voting machines – heavily disfavor urban minority voters, who are traditionally Democratic constituents.
There’s a bit more depth to that argument. Even if, as a political matter, the issuance of the certificate will likely control the outcome in the Senate, as a legal matter the fact remains that the Republicans still have another avenue of relief available after the certificate is issued: they can challenge Franken’s seating in the Senate. Because the courts regard an injunction as an extraordinary remedy, they should require that all avenues be exhausted before the injunction issues. Furthermore, that other remedy is backed with the force of Article 1, Section 5, cl. 1 of the United States Constitution, which clearly says that the United States Senate, not Article 3 courts, are the proper forum for resolving this dispute. Certainly, a judge could ignore all of that, but not without doing damage to bedrock legal principles.
Regarding the “balance of the equities” and “public interest,” I think that even the most partisan judge will be inclined to take the long view (that’s the nice thing about life tenure) and will realize that introducing those sort of political arguments into a legal discussion won’t help anyone’s cause. I’m sure that a partisan judge could find a way to finesse around those requirements, but I think he/she will feel constrained to use traditional equitable principles to do it.
I enjoy the discussion too. Thanks for your response.
May 13, 2009 9:29 AM | Reply | Permalink
Slightly OT, but always a mystery to me, since IANAL...
"This was all "bunk" in Bush v. Gore according to that wiseacre Stevens (and that preachy Breyer!), and even though the colorful case had limited precedential value by its terms,"
By denying their B v G decision the "precedential value" that typically accompanies any SCOTUS decision, didn't they virtually overturn their own decision immediately after making it?
If it can not be used as precedent, then it is not lawful. Their "unprecedented" decision, by their own admission in disallowing future reference, does not stand.
Fat lot of good that truth does us now, we're 8 years and two wars and a few trillion dollars in the hole all because the Supreme Court got purely political.
One fact to consider; Roberts, Thomas, Scalia, and Alito, while appointed ostensibly to overturn Roe V. Wade (which they will not do) are actually there so they can protect corporate interests in the years to come. That is their primary directive project.
They might not want to get their hands dirty with this political case.
It may well be that they will forgo the whole political mess by refusing to take the case, it would be a big hot potato in this age of Democratic majority and Republican demise.
Much depends on how badly those corporate protectorates want to forestall that mythical 60-vote majority.
But looking at the recent rise of the Red Dogs (they don't deserve that Blue label any more), it would appear those multi-national corporations have hedged their bets and bought off some Democrats. Now, that magic number 60 isn't nearly as threatening to them as it was before they bought some new reps(D).
May 13, 2009 3:01 PM | Reply | Permalink
To be precise, what the majority tried to do in Bush v. Gore was limit the decision to its specific, and supposedly unique, facts. Here is the operative language from the per curiam opinion:
What the majority signals there is that, unless a future case presents the identical, unique fact pattern as Bush v. Gore, they will find a way to distinguish it so that they don't have to follow the same rule of law. So it's not that the decision has no precedential value; it's just that the majority wants us to believe that the decision is useless as a precedent.
Limiting a decision to it's facts is a way that courts effectively overrule a decision without actually overruling it. So in a way you are correct. If courts had heeded the majority's warning, then the majority would have effectively overruled its own decision. The majority wasn't successful though; courts have relied on Bush v. Gore despite their warning. That should cause concern for any partisan judge or justice who considers ruling in Coleman's favor.
May 13, 2009 3:49 PM | Reply | Permalink
So we have an unprecedented precedent?
Thanks for the clarification.
May 13, 2009 4:02 PM | Reply | Permalink
Don't expect this to end this year.
The Minnesota Supreme Court will issue its decision. Because federal constitutional issues will be raised, of course, the court's decision can be appealed to the US Supreme Court.
Anyone who has ever EVER read Bush v. Gore can agree that it is the most wrongly decided opinion the court has issued in decades. Ballots don't receive "equal protection," which is the essential holding of Bush v. Gore. So, the court may want to correct that decision -- especially given the prospect of litigation that follows a close race as a result of that decision.
Of course, I am assuming that Roberts and Alito will look at Coleman's Equal Protection claim and chuckle at the good ol' days and then acknowledge how wrong that decision was. They may just try to apply Bush to this case and send it back to Minnesota for additional vote counting.
May 12, 2009 1:47 PM | Reply | Permalink
I appreciate your frank assessment of Bush v. Gore -- yes, a real gem indeed.
I have a hard time imagining Alito being unhappy with the Overreach, though, although maybe I'm being uncharitable (*moi?*) in respect of his beady, shifting little black eyes.
May 12, 2009 3:27 PM | Reply | Permalink
Why send it back to the state? If the republicans on the court are going to blow what's left of their reputation, they might as well just award Coleman the pre-recount status quo.
May 12, 2009 3:40 PM | Reply | Permalink
A little quibble with terminology. The decision of the Minnesota Supreme Court cannot be "appealed" to the SCOTUS. Rather Coleman can file a petition for certiorari requesting that SCOTUS hear the case. SCOTUS need not hear the case but, if four justices vote yes, can take the case (unlike the situation with the recount where the Minnesota Supreme Court was required by law to review the decision of the three judge tribunal). In my considered opinion, SCOTUS will not decide to hear the case. Knowing this, Coleman is unlikely to file a petition for cert. Rather he will file an action in U.S. District Court alleging a violation of his rights and will only file a petition for cert once he loses at the District Court and Court of Appeals level.
May 12, 2009 5:54 PM | Reply | Permalink
This raises and interesting scenario.
I've always thought the SCOTUS would deny cert, but perhaps it would ACCEPT cert for two reasons: first, to decide BvG was wrongly decided, and second, to keep Franken out of the Senate until June 2010, at which time the Senate will be in full political/re-election mode and not inclined to bring anything controversial (& thus requiring 60 votes) to the floor.
May 12, 2009 9:39 PM | Reply | Permalink
I don't know why I'm surprised by Republicans thinking this is a good idea, but I am. It seams like they're incapable of adjusting the new reality in which they find themselves. I know, I know, reality has never been their strong suit, nonetheless, it continues to baffle me.
May 12, 2009 2:00 PM | Reply | Permalink
If the governor and secretary of state refuse to sign then Franken needs to file suit and force Pawlenty to put his reputation on the line. Pawlenty can forget a run for president if he gets pulled into this partisan mess, and he may be the biggest threat the Repubicans actually have for 2012.
May 12, 2009 2:36 PM | Reply | Permalink
Assuming the Coleman appeal is as sloppy and inconsistent as Franken lawyers claim, what would motivate such ineptitude? Or is it deliberately fuzzy so they can claim that the issues were not successfully refuted by MNSC (because it's not possible to clearly refute claims that were unclear to begin with), hence laying the groundwork for Federal appeal, however dubious? Team Coleman's strategy seems to be a transparent denial-of-service attack on the electoral process, not one designed to get Coleman back into the Senate.
May 12, 2009 3:49 PM | Reply | Permalink
"Denial of service attack" is very good. I'm not always fond of IT-based metaphors but as a description of what Coleman (and through him the GOP) is up to, that's a keeper.
May 12, 2009 10:16 PM | Reply | Permalink
My dream: After the MN Supremes rule Franken the winner Secretary of State Mark Ritchie signs his part of the certificate. There's nothing else to do but have Pawlenty sign his part as Governor. Put it all on him - Minnesotans would know who they can "thank" for leaving them one Senator short if he stalls.
May 12, 2009 7:38 PM | Reply | Permalink
So after all this discussion, how about another reality? How about a dose of swift justice? Move the FBI investigation of Coleman's finances to grand jury, then trial, and then conviction. A felon cannot serve in the Senate.
May 13, 2009 9:16 AM | Reply | Permalink
deep thought; Pawlenty is the new Blagojevich?
May 13, 2009 2:44 PM | Reply | Permalink