The speculation is running strong for and against the proposition that Norm Coleman will pursue further legal action, assuming the MN Supremes affirm the lower court ruling that Franken is entitled to an election certificate. and I don't have even a strong hunch what Coleman will do, but I think the question is fairly overrated because people tend to think that by taking legal action Coleman can continue to keep the Senate seat vacant. I believe that's wrong.

If the MN Supremes rule against him, Coleman has two ways to go: appeal the state ruling to the U.S. Supremes, or recruit some plaintiffs to file a new action in federal district court based on federal-only arguments. And either of those processes could take months. (Sen. John Cornyn, chair of the National Republican Senatorial Committee has said "years.")

But in either scenario, the odds are high that Al Franken would get an election certificate and be seated in the Senate while Coleman's appeal or lawsuit gathered some dust waiting for a hearing. The only thing that would surely stop the certificate would be a stay issued either by the U.S. Supremes or a federal judge. The odds against either are quite high.

Let's save the federal district court scenario for another day, but that one is a big longshot. The federal courts are not designed to give a fresh start to any lawsuit that fails in state court.

How about getting the U.S. Supremes to block the certificate? Law Prof. Rick Hasen of Election Law blog posted yesterday that the standard for getting a Supreme Court stay is very tough to meet.

As exhibit A, Hasen linked to the short unanimous order the U.S. Supremes had just issued denying a stay in the Chrysler bankruptcy lawsuit and laying out what it takes to get a stay. Translating from that order to the possible Coleman appeal, to justify the issuance of an order blocking Minnesota from certifying Franken the winner of the election, the majority of the court would have to find all of these elements:

1. A "reasonable probability" that at least four of the justices will decide to hear the appeal (grant certiorari);
2. A "fair prospect" that if the court takes the case, it will overturn the MN Supremes;
3. A "likelihood" that "irreparable harm" will ensue if Franken gets his certificate and (to offset the harm done to Coleman)
4. "Consideration" of the harm done to Franken if he is delayed for months more from getting his certificate and also
5. "Consideration" of the interests of the general public of Minnesota in having its full representaiton in the Senate.

That's a tall hill to climb (and even steeper if the MN Supremes issue a well-written unanimous opinion). But without such a five-part finding, the Supremes will refuse the request for a stay, as they did in the Chrysler case, and it will be very hard for Gov. Pawlenty to justify much delay in signing a certificate.

(As I wrote the other day, I don't think it would be hard for Pawlenty to wait a very few days to give Coleman time to seek such a stay.)