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(Photo by Aaron Landry/Flickr)
Al Franken is asking the Minnesota Supreme Court to order Gov. Tim Pawlenty and Secretary of State Mark Ritchie to issue a signed certificate for Franken’s election to the U.S. Senate.
It’s the same thing Franken’s campaign asked for directly from Pawlenty and Ritchie yesterday, only to be immediately rebuffed by both. Each said he couldn’t act on the certificate until former Sen. Norm Coleman’s election contest lawsuit is resolved.
In his petition (pdf), Franken contends that one part of Minnesota law requiring the issuance of a certificate trumps another that Pawlenty and Ritchie cited in turning Franken down. Marc Elias, Franken’s recount attorney, acknowledged “a tension between these two provisions,” but said that “the only way to harmonize them is to recognize that … an election certificate cannot be held up pending a election contest.”
Referring to the contested seat that remains empty one week into the Senate’s new session, Elias asked, “Should the people of Minnesota be deprived of full representation in the U.S. Senate just so Norm Coleman can go to court to scrounge up more votes?”
Franken’s argument relies in part on a state Supreme Court precedent from 1963 — ironically, the same year Minnesota’s last big recount was resolved. In Odegard v. Olson, the court ruled that “each house of Congress is the sole judge of the election returns and qualifications of its members, exclusive of every other tribunal, including the courts.”
The state law Franken favors is Minnesota Statute 204C.40, subdivision 1. Its more specific instructions regarding certifying the elections of U.S. senators, Elias said, should take precedence over subdivision 2 of the same statute that more broadly prohibits certification while election contests are pending.
Subdivision 1 reads in part:
Except as otherwise provided in this section, the secretary of state or county auditor, as appropriate, shall deliver an election certificate on demand to the elected candidate. In an election for United States representative, the secretary of state shall deliver the original election certificate to the chief clerk of the United States House of Representatives. In an election for United States senator, the governor shall prepare an original certificate of election, countersigned by the secretary of state, and deliver it to the secretary of the United States Senate. … If a recount is undertaken by a canvassing board pursuant to section 204C.35, no certificate of election shall be prepared or delivered until after the recount is completed. In case of a contest, the court may invalidate and revoke the certificate as provided in chapter 209.
Subdivision 2 reads:
No certificate of election shall be issued until seven days after the canvassing board has declared the result of the election. In case of a contest, an election certificate shall not be issued until a court of proper jurisdiction has finally determined the contest. This subdivision shall not apply to candidates elected to the office of state senator or representative.
Elias said Franken is asking the state Supreme Court “to rely on on the first [subdivision], and recognize a carve-out for federal legislative branches in the same way that there is a carve-out for state legislative branches.” (By “carve-out,” Elias was referring to the exception for state House of Representatives and state Senate in Subdivision 2.)
Asked how today’s filing related to Coleman’s election contest or a threatened Senate filibuster on the question of seating Franken (which now appears less likely, according to the latest reports), Elias said those were separate issues. Coleman has a right to an election contest in court, and the U.S. Senate makes its own decisions about seating members, but Franken’s goal at the Supreme Court is more limited, Elias said: “We seek to have Senator-elect Franken given an elect cert in accordance with Minnesota statutes.”
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5 Comments »
Comment posted January 13, 2009 @ 6:44 pm
I don’t fault Mr. Elias for attempting to win for his client. That’s his responsibility. That said, his lawsuit has a hole in it big enough to run a fleet of semis through.
Until every properly cast ballot is recounted, it’s impossible to determine the winner of this election.
Until the SecState’s contradictory rulings have been straightened out, it’s impossible to determine the winner of this election.
Franken’s federal lawsuit implicitly, not explicitly, says that a winner should be determined without counting all properly cast ballots. I said here that that isn’t a good precedent to set.
Comment posted January 13, 2009 @ 7:38 pm
I believe every properly cast ballot was counted twice, originally on election day, and again in the recount process where both sides got to argue over the ballots that were rejected. Coleman effectively wants a third recount, with an adjustment in what is recounted as HE wants the adjustment made. Franken’s side has requested other adjustments which Coleman’s side previously rejected, so there is even a dispute over what should be included in the recount. Effectively Coleman, a FORMER Democrat who turned Republican seems to be unhappy that he has lost the election, and instead of doing what he wanted Franken to do on Election night, is fighting tooth and nail to overturn the will of the people, who HAVE elected Franken. If every properly cast ballot, as agreed by both sides, has been counted already, why this inordinate delay? Issue the certificate, and seat Franken as Senator from the state. That is an excellent precedent to set, as this count after count after count is NOT a good precedent to set. If Coleman loses again, is he going to try to go to the U.S. Supreme Court in Washington, D.C.? That sounds like it could happen, if this nonsense is permitted to continue. In either case, a POX on them…
Comment posted January 13, 2009 @ 7:40 pm
It’s fascinating how so many people can believe that with dozens of people observing, lawyers from both sides and journalists that there was a way to fix the recount. And it is scary the way the media goes right along with the GOP’s slander program. But most of all it is sad the way people believe the garbage coming out of the Republican mouthpiece, Minnesota Democrats Exposed and their blind faith in unsubstantiated lies.
Comment posted January 14, 2009 @ 10:40 am
While Franken’s legal team may have a point and from the lawyer’s point of view is doing what they’re supposed to, from a politician’s point of view, this “demand” is a public relations disaster and makes Franken look like a fool. Who is advising him? Mark Penn?
Comment posted January 14, 2009 @ 10:46 am
Not Dick Morris anyway.
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