Pawlenty: I'll Certify Franken's Election -- If There's No Order Against It From A Federal Court
This is the sort of thing that gets people wondering whether Gov. Tim Pawlenty (R-MN) will actually sign a certificate of election for Al Franken -- as he's said he would do -- once the Minnesota Supreme Court hands down its expected ruling in Al's favor.
Pawlenty appeared this afternoon on the Neil Cavuto show, and Cavuto observed that Pawlenty's decision to not run for a third term, which many people see as a possible lead-up to a presidential campaign in 2012, also frees him up to fight for Norm Coleman. Pawlenty denied that he would behave in such a manner -- but he did point out some possible circumstances that could hold things up further:
"So you could be signing a certificate that would turn that Senate seat over to the Democrat Al Franken?" Cavuto asked. "And that would probably not suit you well."
"Well, I hope not, but you know I have to follow the law," Pawlenty responded. "You know, Neil, if the Minnesota Supreme Court says, 'You sign the certificate' -- and there's not an appeal or some other contrary direction from a federal court -- you know, that's my duty."
The big question here on everyone's minds, when Pawlenty brings up the possibility of a federal court intervening to stop a Franken certification -- which the national GOP leadership has openly called for doing -- is what exactly he might mean by this. Is he playing a sort of wink-wink, nudge-nudge, and subtly asking for this to occur? Or is he simply saying he'll follow the law however it works out, and then innocently listing all the possible permutations?
Josh
Matt
Eric
It seems he's clearly saying that if Coleman announces an intention to go to a federal court, Pawlenty will refuse to sign. I'm guessing SOS Mark Ritchie will sign if the state supreme court declares a winner, so maybe we have a constitutional crisis. It might matter that the Democrats have a big majority in the House and 2/3 in the Senate, so if they all are willing to take the political risk and stick together, they could impeach and remove Pawlenty.
Though if you knew our lt. governor, you wouldn't expect that to happen.
June 3, 2009 6:15 PM | Reply | Permalink
He's not saying that!
He's saying as magster said that he'd sign the certificate if MNSC directs and of course, it follows that if a federal court enjoins him he'll obey that too. Coleman will most certainly ask a Federal court to stay operation of an adverse ruling..tough sell it would seem because there isn't much chance Coleman would ultimately prevail on the merits of any appeal
Left aside, the other possibility = that the MNSC will simply reject Coleman's appeal and reject Franken's request for a writ of mandate.
In that case, given his statement today, I'd think he'd be hard pressed not to sign.
Franken would of course seek a writ of mandate separately in MN dist ct I should think
June 3, 2009 7:21 PM | Reply | Permalink
I don't think it's that tricky. OF COURSE Pawlenty wants to avoid signing the certificate -- unless he's finished with politics. He can't win a primary for President (or Senator) without the crazies in the base, though it's dubious he can win statewide or nationally WITH the crazies, but that's down the road for him.
The federal court documents are all drawn up, Pawlenty will ask the state Attorney General to review the state supreme court's decision, and in the interval Coleman will file his appeal and request an injunction.
Unless a federal injunction is granted, and I think it unlikely, Pawlenty has to sign -- but he'll play it out as long as possible just in case. That way, he alienates neither the looney tunes nor the mods and lives to run another day.
June 3, 2009 6:33 PM | Reply | Permalink
I really think this is the wrong calculus. I think he *can't* win by being the base-playing crazy. There will be plenty of those. Palin, Huckabee, Romney (have you seen how much he's radicalized in the last few months?), Jindal and others are going to split those people up so many ways it won't matter. For Pawlenty to have a real shot he'll have to be the lone centrist in the crowd.
It helps him that things start out in Iowa and New Hampshire, where the base isn't nearly as crazy as elsewhere. But any way you cut it, his easiest out is to sign and act like his hands are tied. That's the setup he's working on in this video...the "look, this isn't my choice to make" defence.
June 3, 2009 7:58 PM | Reply | Permalink
perhaps you didn't read the entire comment you were replying to...
doc didn't say he need BE one of the 'crazies', just that he would need to avoid getting on the wrong side of them. so: it will be 'my hands are tied' if/when he signs it, but he won't be in any hurry to do so.
June 3, 2009 11:08 PM | Reply | Permalink
He said to Andrea Mitchell today that he'd sign it if directed to do so by MNSC.
June 3, 2009 6:44 PM | Reply | Permalink
Indeed he did, adding that it wasn't his place to "play such games"
As I said it seems ages ago, the most significant part of Franken's appellate submission is his request that the MNSC specifically order Pawlenty to sign the election certificate.
That's what I'll be looking for in when their decision comes down - if I live so long
June 3, 2009 7:29 PM | Reply | Permalink
Pawlenty has correctly calculated that the gig is up and any further delays to honor the voters' assures his political death.
Recently the biggest decision he had to make:
1. Continuing to play to the base (effectively sealing his doom for elective office)
or
2. Salvage the situation, e.g., by now saying "Oh my hands are tied, I must certify Franken," (doing this whether the MN Supreme Court orders him to sign a certification or not).
If Pawlenty continues to side with Coleman he and refuses to seat Franken he tells America that he too is a right wing nut case (similar to what Palin did in her election and post-election conduct). This choice means, he has correctly concluded, means he does not have a shot in 2012 and beyond.
In contrast to this, he has wisely calculated that NATIONALLY he must come across as a moderate Republican, anti-Limbaugh, so to speak. (Any Repub with average street smarts knows that to win national office he or she must distance him or her self from Limbaugh, Beck and other mental, and sometimes fat, slobs).
The certification battle has run its course and anyone who does not raise the white flag after the MN Sup Court has ruled might as well just jump off a cliff and to end his or her misery.
I don't see Pawlenty delaying things further, regardless if Coleman heads to Washington to nip at federal justices' ankles.
So regardless of the MN Court's decision (ordering Pawlenty to sign or remaining silent on such), Pawlenty won't continue to stop Mr. Franken from going to Washington.
It's a shame that Mr. Franken has been denied from serving and that Coleman prevented Franken's participation in ceremonies and events that take place when one arrives in Washington to be sworn in.
June 3, 2009 10:27 PM | Reply | Permalink
"You know, Neil, if the Minnesota Supreme Court says, 'You sign the certificate' -- and there's not an appeal or some other contrary direction from a federal court -- you know, that's my duty."
The loaded word here is "appeal." If Coleman gets an injunction from a federal judge ordering Pawlenty NOT to sign the certificate, then of course Pawlenty is not going to sign -- that's what federal supremacy is all about. But if he means that he would refuse to sign just because Coleman has filed a federal appeal, then he's blowing it out his legal ass.
My guess is that in the absence of a federal writ, if Pawlenty refuses to sign Franken's lawyers will be able to go back to the Minn Supremes and get an order for Pawlenty to sign in about a nanosecond flat.
June 3, 2009 10:56 PM | Reply | Permalink
I am very skeptical about those slippery remarks by Pawlenty. Obviously, if Franken wins in the MI Supreme Ct AND Coleman doesn't appeal to the SCOTUS, then Pawlenty HAS TO certify the election unless a federal court (?) tells him he can't. That's a pretty bizarre possibility to cite, and I suspect it's a rhetorical red-herring.
Maybe I'm wrong, but I expect that Coleman will appeal and Pawlenty will balk at certifying Franken 'while the case is still pending'. And unless a federal court tells Pawlenty he MUST certify, he'll try to dig in his heels.
Then again, Pawlenty would face overwhelming pressure from everyone EXCEPT the GOP machinery, so he might just give in. But I don't think he'll just certify Franken upon winning in the MI Supreme Ct without some hesitation, and the inevitable serious counterpressure
June 3, 2009 11:32 PM | Reply | Permalink
Cloudy.... good points.
But I don't see Coleman and Pawlenty (Yes, they are all in cahoots) having any legal grounds to allow Pawlenty NOT to certify.
At the state level, if Franken wins and the Court does NOT order Pawlenty to certify, that still leaves Coleman and Pawlenty in the dubious position of saying on this MN state issue:
The voters are wrong.
The trial court is wrong.
The intermediate appeals court is wrong.
The MN Supreme Court is wrong.
And as I said in another post, only the federal courts are competent and capable of righting the wrongs committed by the MN electorate and judicial system.
If Pawlenty goes down that road he will look like a typical crooked Republican, who does not care about the people he is supposedly working for.
I just don't see him committing political suicide.
As another post said, and which I mentioned in another comment to an article, I don't see a federal court issuing a stay or a writ, prohibiting Pawlenty from sending Franken to Washington. The standards and burdens that must be met for a party (Coleman) to get a stay or an injunction are extremely high (including the likelihood that he will win on the appeal. Assuming he loses at the MN SC level, that will mean he has lost every battle. That's a good indication he won't win on the merits on a fed appeal).
And assuming the MN SC affirms the lower court's decision (most likely), it may be done on the safest and easiest way to decide these kinds of cases, Coleman failed to evidence to support his theories at the trial court level. (Lack of evidence kills one's chances to win on an appeal. Once deciding on the basis of insufficient evidence, courts look no further on deciding a case. There's no need to.
So I don't see any legal grounds whatsoever that Pawlenty can rely on to refuse to certify the election.
But I don't know if this is a novel area of law for MN. Has this issue never been dealt with in MN? If ti has not, does that give a green light to Pawlenty to "make up the law as he goes along?" If that's true then it's too bad for Franken that Pawlenty can say "Oh, since there is a federal appeal I won't certify Franken."
If he does that, he is total toast in national politics. This will affect him the same way the Repubs suffered with their position on stem cell research, Terri Schiavo, changes in bankruptcy law, etc. The Repubs thought they could do whatever they wanted and the American public would forget in the long run. But Americans did not forget.
I submit that this Coleman/Franken controversy will be Pawlenty's legacy. So far he has gotten away with it, but if he continues with the machinations AFTER the MN SC rules, the American people are not going to forget.
So where we differ is that I think if the MN SC does not order Pawlenty to certify, he nevertheless will send Franken to Washington.
This brings up an interesting point... just what is being appealed? The election? Pawlenty's powers? Are there MN constitutional issues being raised (equal protection, etc.)?
I ask this because I can't see on what bases a fed court can interpret the MN constitution, MN statutes, regulations, and the MN justice system, including the courts. That's what was so bizarre about Bush v Gore, and subjected the SCOTUS to heavy criticism (telling the Florida Supreme Court what to do).
Can we place bets on what will happen? LOL. I'll put $20 that Pawlenty will certify Franken no matter what if the MN SC rules in Franken's favor. He might hold his nose while doing it and tell the base he hates doing it, but the law is the law (aka "I don't want to commit political suicide.")
June 4, 2009 12:48 AM | Reply | Permalink
I hope if Pawlenty refuses to sign that Franken has a way to legally pull him into this.
Pawlenty will appear to be a partisan puppet if he refuses to sign...and that's hardly presidential material.
June 4, 2009 12:48 AM | Reply | Permalink
"You know, Neil, if the Minnesota Supreme Court says, 'You sign the certificate' -- and there's not an appeal or some other contrary direction from a federal court -- you know, that's my duty."
He is embedding himself in process and laying out for all (his own party, the court, others) what he's going to do, so nobody please be surprised. The "and" means that two (or three) conditions need to be fulfilled in order for him to sign:
a) He needs to be specifically instructed by the court to sign, and
b) there is neither (1) an "appeal," or (2) other contrary direction from a federal court.
So,
A) If the court expects him to sign, please explcitly order him to do it because otherwise he won't.
B(1) An petitition for cert. at SCotUS will still stop him from signing, even if he's ordered to by state Sup.Ct.
B(2) He has left himself some wiggle room if it moves to lower federal court. He'll sign it unles they give "contrary direction." But how much time can he leave it unsigned while he waits for contrary direction? (Or can "his lawyers" advise him that the collateral action is itself tantamount to contrary direction and therefore he shouldn't sign?) Probably, though, in this case, provided he is instructed to sign it by State Sup. Ct., if collateral action in federal court is not accompanied by a motion for some kind of injunctive relief, he'd rather sign it and make it somebody else's problem. Especially now that he's laid down this reasonably clear formula, in case anybody has any questions.
He can now cite the above and say, "See?! I told you how I'd handle it and you didn't cry out then!" if anybody has second thoughts later.
No?
June 4, 2009 2:11 AM | Reply | Permalink
Overreach... certainly it can happen as you outline, but if he does any of those things he becomes the focus of the battle, not Coleman.
It would be news if he does not certify Franken. No way he wants to take the heat off Coleman.
And as I said in my post, in filing a federal appeal and Pawlenty using that as a basis to continue to refuse to certify Franken, that is in essence a sitting governor saying that the entire system in his state is so messed up that he has determined that Coleman needs the federal courts to intercede and help Coleman out.
I say there is no way that Pawlenty is going to send that message to the citizens of MN. And as far fetched as it sounds, I would not be surprised if some people don't start mentioning recall or impeachment.
Pawlenty cannot be that stupid, to put his head on the chopping block, especially for someone like Coleman. He will tell his Republican bosses (RNC, Washington Senate leaders) that he has done all he can to delay, but he can't stall any longer.
As to procedure, I am not sure how it works with state supreme court cases. Does a private party who is unhappy with the court's decision have to start with a circuit court of appeals, then to the Supreme Court. If that's the track, then the Repubs may try to do what one of their leaders said, to tie it up in the courts for the next 10 years. (He was exaggerating on the length of time, but not the concept.)
At some point I imagine Franken will file his papers seeking a court order for Pawlenty to sign the certification.
But again, I can't imagine it getting to that because as above, the focus is now on Pawlenty and him being the one to use stall tactics to keep Franken becoming the 60th Dem Senator. I know the national Repubs are trying to delay Franken's cert as long as possible so that as many decisions, bills and other matters (Sotomayor nomination) can be filibustered.
All this does not matter in a way because the bigger story is that this is one more example of the Repubs engaging in dirty, dishonest tactics to get what they want.
Add this to Repubs calling others racists or referring to the POTUS as the magic Negro, and having Limbaugh, Cheney, Beck and others inciting hate, well... Pawlenty actions just adds more maggots to the rotting corpse (aka the GOP).
June 4, 2009 4:24 AM | Reply | Permalink
BTW I'm confused about procedure myself, as noted below. So let's ask the cognoscenti.
I am more arguing here that he wants *everybody* to understand what his next moves are, and what they need to do to influence same. The court *must* order him to sign or he's not going to, and he hopes they do so he's got fewer options. He's in more political jeopardy if they let him use his own (partistan 2012 USA-tuning-into-Latin-America-in-70s) judgement. So since he's now told them, hopefully they got the message and will do so. He's left himself some wiggle room to see what Coleman then does, but he may even have misspoke -- I just laid out the implications of what he actually *said.* I think he'd love to have his hand forced to deny himself any options and then he can campaign against those devils who will have so crudely forced his hand, when the fiends should be *interpreting* the law, not legislating from the bench! Blah-blah-blah.
June 4, 2009 4:46 AM | Reply | Permalink
Can somebody remind us how/if Coleman can "appeal" the State Sup. Ct. decision which is going to be against him? Not a collateral attack in Federal Court, but "appeal" to use Pawlenty's term? He can argue that electoral laws are unconstitutional and seek that they be struck down, right? Where would he make that argument apart from the "collateral" action?
June 4, 2009 4:38 AM | Reply | Permalink
When(if) the MNSC affirms the election contest court's judgment, Coleman will have but two possible avenues of relief: (1) a petition for a writ of certiorari to the USSC or (2) a collateral action in federal district court. Neither is an "appeal."
Although it is all too often erroneously referred to as an appeal, the cert petition is a request to the Supreme Court to exercise its discretion to review and correct the error of an inferior court's judgment. Coleman would have to premise a cert petition on federal law (here, constitutional) grounds that were raised and wrongly decided by the Minnesota courts. A collateral action in district court would also have to be premised on federal law in order for the district court to have jurisdiction.
MN appellate procedure rules ordinarily allow ten days before the mandate issues (to allow time for a petition for reconsideration by the MNSC). If the MNSC does not waive the ten-day period or order the guv to sign the election certificate forthwith, then while the guv ponders what to do Coleman will have a window to file a cert petition or start a collateral action. Neither a cert petition or a collateral action would necessarily stay the mandate of the MN SC; Coleman would have to ask the district court for an injunction or ask the USSC for a stay pending the filing of his cert petition. The 'merits' of Coleman's claim (the likelihood of his eventually prevailing) figure into a determination of his right to a stay/injunction.
June 4, 2009 8:42 AM | Reply | Permalink
If Pawlenty were smart - which is highly questionable since he's a repuglican - he could easily defend certifying Franken by stating he ta-ta's wouldn't be roasting over a roaring fire if the base had done their job and got enough people to vote for Coleman on election night. It's not his fault, it's their fault. He's just carrying out the duties of his office he swore to uphold.
June 4, 2009 11:08 AM | Reply | Permalink
Yeah, but the GOP base (especially the ones he most needs to appeal to, who aren't in MN) won't like being scolded and never accept that the law of the land means they don't get what they want. (Note Cavuto's comment that seating Franken "would not suit you.")
It may be true, but that doesn't make it a successful political strategy.
June 4, 2009 2:48 PM | Reply | Permalink
Minnesota Slim... good explanation, but maybe too technical for laypeople.
Bottom line:
Coleman can contest, object (or "appeal") the MN state case to the federal courts on two paths:
1. He can file a complaint in the federal district court (the fed system's trial court), starting at the bottom, so to speak, and let the case wind it's way through the federal system, including appeal to the circuit appeals court and the U. S. Sup. Crt.
If he chooses this route the filing does NOT stay or halt whatever the MN Supreme Court has decided (e.g., gov must certify Franken). To stop a negative decision against him he would have to obtain an injunction or writ. That's asking a federal court to order MN to do or not do something.
That's difficult to obtain and fed courts don't usually order state courts what to do unless the fed constitution is clearly being abused.
2. The other option is to go directly to the U. S. Supreme Court in an attempt to get an immediate order (writ) to stop MN from certifying Franken. (I assume from Slim's post that there is a direct route to the SCOTUS.)
The SCOTUS does not hand out writs or injunctions like candy. I submit that on something like this (and considering its Coleman who is doing the whining, not a sympathetic party) the SCOTUS will reject his petition with one of those famous one-page notices they like to send out.
And if the MN Sup. Court sustains the low court's decision on the basis that Coleman failed to produce evidence to support his theories or claims, this will seal his doom at the SCOTUS since a "failure to produce evidence at trial" 99.9% of the time kills a chance at winning at the appellate court level on a factual dispute.
June 5, 2009 1:56 PM | Reply | Permalink