Franken to Supreme Court: Make Pawlenty and Ritchie issue election certificate

(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.”