What's Next In Minnesota: A Virtually-Certain Ruling For Franken -- And Big Choices For Pawlenty
So with the Minnesota Supreme Court having heard arguments yesterday in Norm Coleman's appeal of his defeat in the Senate election trial (check out our coverage here, here, here and here), what comes next?
I spoke today with Prof. Larry Jacobs of the University of Minnesota, and he predicts that the state Supreme Court will likely put out a ruling by the end of the month -- and that this ruling will be for Franken, based on their very sharp questioning of Coleman's lawyer yesterday. "I would take from that session that the judges may have already written a good part of their decision," said Jacobs, "because their thinking was very far along, and there were a number of them on the same page."
At that point, the outcome here really hinges on one man: Republican Gov. Tim Pawlenty, who announced today that he is not running for a third term in 2010.
"Pawlenty's decision not to run for governor could be a lead-up to a decision to run for President," said Jacobs. "And Pawlenty's decision to run for President makes it more likely, not less, that he will support Coleman's efforts to appeal to the federal courts when he loses in the Minnesota Supreme Court. So I think the bottom line here is, Gov. Pawlenty's political agenda may end up driving how he handles the Senate recount."
I asked Jacobs about how Pawlenty said today -- not for the first time -- that he would obey the decision of a court to issue a certificate of election. But Jacobs still sees wiggle room here. "Signing it -- and how quickly you sign it -- those are two different things," Jacobs explained. "If Norm indicates that he's going to be filing in federal court, the Governor may just say, 'you know, I am gonna sign it, I'm just waiting to hear from my legal counsel that this is appropriate.'"
Indeed, Pawlenty has given some mixed signals. Shortly before the trial court ruled for Al Franken, Pawlenty said that even after the state Supreme Court handed down a ruling, he would have to look at the ruling, and evaluate the strength of any remaining issues for potential appeal. That said, a court ruling that demanded an immediate certification might not leave him much wiggle room.
Meanwhile, Coleman could go looking for a federal court somewhere to hand down an injunction against a certificate, based on his complaint that the state has violated the Due Process and Equal Protection clauses of the 14th Amendment. Indeed, National Republican Senatorial Committee Chairman John Cornyn -- who has said the case could take "years" to resolve -- has also said a federal court should issue an injunction in order to prevent the issue from being mooted.
Jacobs doesn't think it's likely that a federal court would want to get involved. "I think any federal court is going to be very leery about jumping into state elections," he said. "Basically, the courts don't want to create a whole new line of business." But the Republicans could still try to do it -- and whether they succeed or not, there could be some potential delay.
The bottom line: If Pawlenty quickly were to sign a certificate in an orderly fashion, then Al Franken would be on his way to the Senate, and the national GOP's interest in bankrolling Coleman's legal fight would probably evaporate pretty quickly. But if there does end up being any continued delay, then this could extend for weeks or even months longer.
Josh
Matt
Eric
I wonder about this. My dim recollection of how the courts work is that appeals from a state supreme court can go only to the U.S. Supreme Court.
If that's true, and if the MN SC ruling includes an order that an election certificate be issued, the Coleman camp would have to get Samuel Alito to grant an emergency stay. (Alito is assigned to hear emergency appeals from the Eight Circuit, which includes MN.)
Anybody out there know if this is the case? Thanks!
June 2, 2009 5:44 PM | Reply | Permalink
I have read that Coleman could also file a separate action in Federal District Court alleging violations of federal law. I am not sure which approach is more likely to get him an injunction issued (I don't think either will do it).
I fully agree with "Overreach", below, that Pawlenty's best outcome at this point is a decision that orders him to sign a certificate immediately.
June 2, 2009 6:00 PM | Reply | Permalink
You are correct, that an appeal from the State Supreme Court would go to the U.S. Supreme Court. However, Coleman is not technically planning to "appeal" from this ruling. In a technical sense, Coleman would "collaterally attack" the ruling of the MN Supreme Court in a brand-new federal action. Any federal district court could then stay the execution of the MN Supreme Court's decision because of the supremacy clause of the constitution.
Happy to help with obscure legalese.
June 2, 2009 6:13 PM | Reply | Permalink
In 1996, we had a Reagan-appointed federal judge, David Ezra, summarily overturn a Hawaii Supreme Court ruling on what was clearly a state constitutional issue, after agreeing to hear a class-action lawsuit filed by the Hawaii GOP regarding its failed attempt to convene a state constitutional convention.
Judge Ezra's decision was subsequently and unanimously reversed by the 9th Circuit Court of Appeals, which ruled in no uncertain terms that Ezra uniformly failed to demonstrate that a compelling federal constitutional issue was at stake which required his intervention in an internal state matter, and that absent that, the Hawaii Supreme Court was the sole final arbiter of all matters involving any interpretation of the Hawaii state constitution.
June 2, 2009 10:41 PM | Reply | Permalink
P.S.: If anyone is interested in reading the 9th Circuit's ruling regarding a federal judge's intervention in a state supreme court ruling, the reference is:
Bennett v. Yoshina, 140 F.3d 1218, 1228 (9th Cir. 1998) ("Yoshina I"), cert. denied, 525 U.S. 1103 (1999)
June 2, 2009 10:51 PM | Reply | Permalink
Any similar 8th Circuit law?
If not, what is the likelihood the 8th would rule in accordance with the 9th?
June 3, 2009 3:05 AM | Reply | Permalink
Since this case is being argued under the US, not the MN, constitution, the point is moot. The MN Supreme Court is not the final arbiter of the US constitution.
June 3, 2009 8:54 AM | Reply | Permalink
As I've said elsewhere here today, the court does Pawlenty (the new candidate for we don't yet know what) a real favor if they take the choice away from him and order him to sign.
June 2, 2009 5:44 PM | Reply | Permalink
Much as I want Franken in the Senate, I'm tempted to tell the GOP to go federal, because they're burning up campaign money, (assuming Franken doesn't have to spend as much), putting an end to Coleman's hopes in future campaigns (admittedly dim already), and damaging Pawlenty in Minnesota. He might not care as far a governing, but maybe it would make a difference if he's running in the presidential general election and Minnesota is close.
June 2, 2009 6:21 PM | Reply | Permalink
I'm going to go contrary to conventional wisdom and suggest that Pawlenty may give a certificate to Franken precisely because it would help his presidential chances.
There seems to be a universal assumption that the 2012 Republican presidential nominee will have to play to the Republican base. And certainly we've seen that in Senate, House and state elections hard right candidates have a built-in advantage in primaries against more centrist Republicans.
However, in the Presidential primary the system actually favors the moderate, independent, "RINO" type of Republican. After the caucuses in purple Iowa the big first primary is in the heart of New England, New Hampshire. After that come several large states with open primary laws. The open primary system encourages independents and even Democrats to cross over and participate in the Republican primary. In 2012 this will be especially significant, as Obama is almost certain to be unopposed on the Democratic side, which means that the voter demographics in those states will be more like a general election than a Republican primary.
It was because of this system that McCain was able to win the nomination easily, despite being counted out as late as December 2007 and despite being absolutely loathed by the Limbaugh nation. Among the Republican field he stood out, in terms of public image if not reality, as the most "independent" and "centrist". Sure, both Guiliani and Romney had a track record of leaning left on social issues, but because they were forced to adopt hard right rhetoric to appeal to the Republican base, their political *images* were not centrist.
Even when GW Bush won in 2000 it was because he too had adopted an outward centrist posture, while subtlely signalling to the base that he was one of them.
If Pawlenty is smart he'll realize that his only feasible route to the presidency is the centrist one. He's already seen by the hard right as a "RINO", someone who they will tolerate as long as he behaves but who they will never trust or support, no matter how many rhetorical bones he throws their way. He won't win the nomination by trying to be more Palin than Palin or more Huckabee than Huckabee ... those positions are already staked out.
Instead, his best shot is to get the Broders and Brooks to annoit him as the next great moderate, a la Lieberman and McCain. If he can get the Washington punditry to see him in this way he'll get the sort of exposure and publicity that will give him the votes he needs to get the nomination.
And that's where the Franken certification comes in. This will be Pawlenty's first decision that will carry national significance and national attention. If he toes the Republican line he'll just be another unremarkable Republican governor. But if he pisses off the Limbaugh hard right and certifies Franken (which legally he should do) he'll be given Washington accolates about how independent and centrist he is ... and get lots of publicity along the way.
Of course, if he does plan to do this he also knows that doing so dooms his chances of being re-elected Governor. Unlike the Presidential primaries, he won't be able to survive a primary challenge in his state from the hard right, and even if he did squeak by he'd probably lose the general in a 3-way race due to a hard right 3rd party candidate.
So, it's smart for him to announce he's not seeking re-election NOW -- before the Franken announcement -- so that when later he gives the seat to Franken it won't look like his failure to seek re-election is due to intimidation from the hard right.
Like any good politician he hedged his bets to the end. Only after getting feedback about yesterday's hearing at the state Supreme Court did Pawlenty commit to this course of action -- only after realizing that a Franken win is inevitable.
June 2, 2009 6:23 PM | Reply | Permalink
I'll go contrary too.
June 2, 2009 6:32 PM | Reply | Permalink
I am not sure that I agree with the 2012 Repub nomination part of the analysis as it rests on what occurred in 2008. McCain benefited from the perfect storm in the 2008 primaries (before running into the Obama buzzsaw in the general election). First, McCain did reap rewards from his moderate image that had held over from his run in 2000 and a few choice high profile votes/positions he took in the intervening 7 years. I don't however think that would have been enough to snare the nomination on his own. Rather, he had the perception of the Republican political center to himself, while the various wings of the Republican right were split between Huckabee, Thompson, Guiliani et al. That allowed him to squeak through when the others split up the right wing vote.
Second, as you point out, the fact that many of the early primaries were open ones, benefited McCain tremendously in attracting voters beyond the party base who were not registered Repubs.
Third, Thompson conveniently stayed in the race long past his shelf life expiration date, probably very purposefully, in order to run interference for McCain on his right flank vis a vis Huckabee. Thompson clearly bled votes that probably otherwise would have gone to Huckabee in key southern and border states. If you recall, McCain ended up edging Huckabee by one or two percentage points in several critical states in primaries leading up to Super Tuesday and on Super Tuesday itself. Had Thompson dropped out earlier when it became quite apparent that his chances of winning the nomination were nil, Huckabee would likely have won several of those key primaries.
And fourth, besides the over-sized media exposure that goes to the victor even though the specific primary might have essentially ended in a tie, Repubs still have a lot of winner-take-all primaries, and McCain uncannily seemed to win almost all of those, even as I said, in many instances by a hair's breadth. That allowed him to significantly pad his delegate total, and wrap up the nomination very early in the process.
So, bottom line---Pawlenty could succeed again as the "moderate" option if as seems probable, there is again a logjam on the Republican right. However, if the right ended up coalescing around one candidate (like they did in 2000 behind Bush), I don't think Pawlenty's moderate street cred would take him very far.
June 2, 2009 7:04 PM | Reply | Permalink
Um, somehow Romney got omitted in the list of 2008 right wing Repub candidates splitting the vote above.
June 2, 2009 7:08 PM | Reply | Permalink
It's a good point that part of what help McCain was that the other candidates split the hardliner vote.
And it's also true that at this point it is way to early to tell if there will be a candidate who sucks up all the votes from the hard right as Bush did in 2000.
However, if I were advising Pawlenty today I'd still suggest aiming for the moderate position on the grounds that there are likely to be few, if any, other Republican moderates in the primary while the field of far-right candidates is likely to be crowded.
After all, that is what the Republican party looks like today. And, in addition, it matches who Pawlenty has been to date, instead of him trying to fight for hard-right votes with candidates who are already firmly established in that sphere.
June 2, 2009 7:20 PM | Reply | Permalink
I tend to agree with this.
June 3, 2009 8:56 AM | Reply | Permalink
Moi aussi. With the added contention that it's easier for a contender to run for office if they're free to raise money and campaign without having a state to run at the same time.
June 3, 2009 9:43 AM | Reply | Permalink
I luckily have several weeks vacation coming up at the end of June, and can think of nothing I would rather do than spend some summer days picketing and casting aspersions on the character and moral fiber of the Governor Less-Than Pawlenty should he opt to obstruct the will of the electorate! Being a Minnesotan, I'm not much for tea (or bagging for that matter), but maybe a Hotdish to HE double hockey sticks cookoff in front of the Governors mansion would have an impact. Anyone care to join?
June 2, 2009 6:34 PM | Reply | Permalink
There's an astute article in the Minnesota Post today by Jay Weiner, where he writes:
http://www.minnpost.com/stories/2009/06/01/9204/supreme_court_oral_arguments_did_coleman_prove_enough_to_overturn_three-judge_panels_decision
[cite]
That evidence — that the justices seemed not to be seeing — "that's the predicate for equal protection and due process claims," [Raleigh Levine [William Mitchell College of Law's elections expert] said. "You've got to show where the record demonstrates that there are so many ballots that were treated in the way you're alleging. You're asking us to speculate on the basis of some examples."
But, more significantly, if the Minnesota Supreme Court should rule in Franken's favor and rule that there wasn't enough evidence to even raise equal protection and due process issues, then, that would "insulate their decision from U.S. Supreme Court review."
If the evidence isn't there, then there's no constitutional matter for the U.S. Supremes to tackle.
Coleman's federal efforts — assuming there were any — would be less than slim.
[/cite]
June 2, 2009 6:39 PM | Reply | Permalink
[quote]But, more significantly, if the Minnesota Supreme Court should rule in Franken's favor and rule that there wasn't enough evidence to even raise equal protection and due process issues, then, that would "insulate their decision from U.S. Supreme Court review."
If the evidence isn't there, then there's no constitutional matter for the U.S. Supremes to tackle.[/quote]
Remember that this court has the same political balance as it did in 2000. And we all saw what happened then.
It wouldn't surprise me at all to see the USSC take it up and even rule in Coleman's favor.
June 2, 2009 7:59 PM | Reply | Permalink
The federal court would still have to rule on the equal protection claim, and that could take several weeks, if not a few months to dispose of.
Although Republicans bitch and moan about frivolous lawsuits, they are the first to howl about unfair treatment and take to the courts no matter how baseless their claims. Given that it's pretty clear all they want to do at this point is delay Franken being seated, I'll believe they won't file a federal claim when the statute of limitations has run without a complaint being filed.
June 2, 2009 11:39 PM | Reply | Permalink
Reply to Mnice
I would love to join you in picketing Governor Insawficient, but unfortunately I have to work
June 2, 2009 7:44 PM | Reply | Permalink
If Pawlenty has any sense he will honor the State Supreme Court's findings. If they (as they must) find for Franken, he can say that he did what he was charged to do by his state's highest court. If he doesn't, what can he say?
Everyone knows that this is bullshit, including the citizens of Minnesota. If he says "The citizens have not been heard," he will be known as a buffoon and a political hack.
The rabid repubs who would encourage him not to sign off on Franken have nothing to lose, particularly since he will not run for governor again. There is no way that he would win (if he runs in 2012, which I think is in question).
In short, he has much to lose by backing a loser, and much to gain by following the law.
June 2, 2009 8:31 PM | Reply | Permalink
I say, Pawlenty signs the document by Friday!
June 2, 2009 9:22 PM | Reply | Permalink
Great stuff here. But as a non-Minnesotan who knows little about Pawlenty, could someone tell me why he would do a George Wallace and defy a court order? Remember, even Wallace stepped aside at the U of Alabama. If the Supreme Court orders Pawlenty to issue a certificate, why shouldn't he? Can always whine to Rush & Sean, "They forced me to do it." (Is Pawlenty a lawyer? Also another reason).
Let's hope they rule for Franken soon. (I am very distantly related to Boschwitz, who held this seat until he was defeated by Wellstone. Never met the guy and have never voted Republican!)
June 2, 2009 10:43 PM | Reply | Permalink
I seem to recall that the Supreme Court looses out over jurisdiction to the Senate on whom the senate seats. Therefore, they wouldn't take the case because the Senate can overrule them.
Is that right?
June 2, 2009 10:48 PM | Reply | Permalink
This was always a red herring. And it has horribly backfired on the Republicans. Coleman and the Republicans always knew their case and chances of success were slim. But, they thought it may be worth it to draw the Democrats and Liberals into a fight to seat Franken.
If they could have done that, it would have helped them tremendously. It would have been great for their base as far as getting it fired up. It would have been great to take the Obama machine down a peg as far as his post-partisan agenda (which is death for the Republicans and they know it). And it would have been great propaganda as far as "see, the Democrats are drunk with power, and are trying to de-rail the legal process in a sovereign state". Etc. Etc. Etc.
Franken, Obama, Reid, and the Democrats never took the bait.
Now, its turned into a political bonanza for the Democrats; pointing out as an example of just how obstructionist the Republicans have become. Even to the will of the people.
And, as an added bonus, the Democrats get a chance to take out one of the rising stars of the Republican Party (Pawlenty). If he's willing to join in the Republicans obstructionist agenda. Which I very much doubt he will be.
It reached a tipping point after the recount was over. And its all down hill now for the Republicans on this.
In fact, now, it benefits the Democrats for this to go on as long as possible, much more than it does the Republicans. At least politically.
Would it be great to have Al's vote. Sure. But he's doing a solid for the Democrats right where he is, at least as much as he would be in the Senate.
Not getting drawn into a fight that really doesn't matter that much (it IS only one vote), has allowed the post partisan machine to roll on and on. With more and more moderates on the Independent and Republican side jumping ship.
Fascinating.
June 3, 2009 3:57 AM | Reply | Permalink
Very intersting perspective. But I doubt many outside Minnesota are aware of the nuances of this. They just see an election so close that it's being decided in the courts. If the court rules for franken and tells Pawlenty to sign the certificate, and he signs, he's signing away the nomination. If he equivocates until further appeal, no one outside MN will remember in 2012.
June 3, 2009 8:43 AM | Reply | Permalink
Well, there are ways of reminding people. Besides, if he refuses to sign and after more months of BS Franken wins, Pawlenty will be tarred with this --
"Who wants a president who defies the 3rd branch of his own state government? Who wants a loose cannon answering that 3 am phone call?"
June 3, 2009 9:57 AM | Reply | Permalink
it is as prof jacobs says, it isn't about IF pawlenty signs the certificate, it's about how long he takes to do it.
depending on how clear the MN SC is wrt the certificate (if they address it at all) pawlenty may be able to sufficiently appease the appeasable in the GOP base with a little bit of foot-dragging and a hands-tied plea while not alienating the independents moderates. he can still come out of this seeming to be above the fray and properly executing his duties as gov. it'll just require a bit of deftness.
June 3, 2009 9:33 AM | Reply | Permalink
I think Pawlenty's long term plan is to run against Franken in 2014. Palenty strikes me as a realistic pragmatic ambitious politition. As such he surely knows being elected President in 2012 is a very long shot.
Deciding not to run for a 3rd term as governor is consistant with such a plan. He has lost some prestige this past term as the Mn legislature is now controlled by Democrats, and his veto of a DFL budget Bill was almost overriden. It would seem far more attractive to run for the Senate as a private citizen than as an embattled Governor. He also would not want to take the risk of losing re-election next year.
A Presidential run in 2012 nicely fills in the 4 year gap between when he finishes his current term, which might otherwise be a serious problem.
June 3, 2009 2:27 PM | Reply | Permalink