Kahn’s bill — which would have had the immediate effect of making Al Franken a temporary U.S. senator — died in committee earlier this year, despite an expert’s warning that without it, Minnesota’s second U.S. Senate seat could stay empty for five months. (It stayed empty for six.) Hamline University School of Law professor David Schultz helped Kahn craft the bill because Minnesota is one of only a few states without a provisional-certificate law.

“Minnesotans have had only one U.S. senator for over five months,” a statement (pdf) from Kahn said. “This just isn’t fair to the citizens of Minnesota. Providing a provisional certificate of election to the winner of the recount is a common-sense remedy that would ensure this never happens again.”

Another thing that never happened: election reform, as passed by the state legislature during the session that adjourned this spring. Gov. Tim Pawlenty vetoed all three bills that came to his desk.

Read below what the document says, or see the full document, seal and all, along with a cover letter, in this pdf.

Certificate of Election for Six-Year Term

To the President of the Senate of the United States:

This is to certify that on the fourth day of November, 2008, Al Franken was duly chosen by the qualified electors of the State of Minnesota a Senator from said State to represent said State in the Senate of the United States for the term of six years, beginning on the 3rd day of January, 2009.

Witness: His excellency our governor Tim Pawlenty, and our seal hereto affixed at Saint Paul, Minnesota this 30th day of June, in the year of our Lord 2009.

The Minnesota Supreme Court has today addressed the issues surrounding the accuracy and integrity of our election system during the 2008 U.S. Senate race in Minnesota. In light of that decision and Senator Coleman’s announcement that he will not be pursuing an appeal, I will be signing the election certificate today as directed by the court and applicable law.

I would like to thank Senator Coleman for his service. As state solicitor general, Mayor of Saint Paul and United States Senator, he has been an extraordinary leader and public servant for Minnesota.

I also want to congratulate Al Franken and wish him well as he serves the people of Minnesota.

Also today, in a split 3-2 decision (pdf), the judges ruled that local officials’ errors in rejecting absentee ballot envelopes can’t be corrected by county canvassing boards, but can be corrected by agreement of the candidates and the local officials.

The two dissenters, Justices Alan Page and Paul Anderson, were the same who disagreed with a majority opinion last December that notably allowed the campaigns of Franken and former U.S. Sen. Norm Coleman to eliminate some absentee ballots from the statewide recount. Today’s order noted it was following up on the Dec. 18 order.

Chief Justice Eric Magnuson and Justice G. Barry Anderson — who served on the State Canvassing Board that certified the recount results that Franken received 255 more votes than Coleman — did not participate in either decision announced today.

Franken’s motion to dismiss can’t be a completely unwelcome development in the three-judge court’s chambers. They’ve already rejected out of hand Coleman’s assertions of Florida-level electoral chaos and fined the former Republican senator’s side for wasting their time. And some points in Franken’s motion (pdf via UpTake/MinnPost) are so indisputable that even Coleman’s camp has already conceded them.

But throwing out Coleman’s case — however tempting that might be to the judges after more than five weeks at trial  – would risk delivering to the public a TKO (to use a not-so-far-out boxing term) that offers a diminished sense of resolution compared to a unanimous decision after proceedings that have run their full course. And that result could be achieved be within two weeks.

So Franken’s motion to dismiss, while not exactly DOA, is likely to find a home in the same dead-letter office that has since Jan. 13 been home to his petition (pdf) asking the state Supreme Court to force the governor and secretary of state to issue him the certificate of election he needs to be seated in the U.S. Senate.

UPDATE: What do you know? The day after this post, the state Supreme Court did rule on Franken’s election certificate. (Al won’t be pleased.)

In Schultz’s estimation, including time for appeals, the trial in Coleman’s lawsuit might last through June. “Do we want Minnesota to only have one U.S. senator [until then]?” Schultz said in an interview. That is a compelling reason for Gov. Tim Pawlenty to sign the bill, he said.

Kahn says she expects Schultz to testify in hearings on her bill, which she said will take a minimum of two weeks to pass the state Legislature.

One provision that Schultz said he suggested that’s not in Kahn’s bill is a requirement that the governor and secretary of state sign the provisional election certificate. Recently, in Illinois, the secretary of state refused to sign an election certificate for Gov. Rod Blagojevich’s appointee to fill President Barack Obama’s former seat in the U.S. Senate. The same thing could happen here, Schultz said, even under Kahn’s bill.

Schultz said that, to his knowledge, Minnesota is the only state, or one of very few, lacking a provision for temporary election certificates. He also believes the U.S. Senate has never seated a senator without an election certificate of some kind.

(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.”

“I have a duty to follow state law and our statutes are clear on this issue,” Pawlenty said in a statement his office released early Monday afternoon. “I am prohibited from issuing a certificate of election until the election contest in the courts has been resolved.”

Here is the statute Pawlenty cited in his statement:

Minnesota Statutes 204C.40 CERTIFICATES OF ELECTION.

Subdivision 2. Time of issuance; certain offices.

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.