Prof. Rick Hasen, another close observer of the Franken-Coleman case and the keeper of Election Law Blog, opined in the L.A. Times this morning (shortly before the Supreme Court oral arguments in the case) that if the MN Supremes rule in favor of Franken, the Senate should seat Franken provisionally — even if Coleman continues to appeal and even if Gov. Pawlenty declines to issue an election certificate.
(I have advocated this myself, in the past, hoping that it could be on a bipartisan basis, with an agreement that if Coleman prevails in future court actions, he would get to take his seat. I still think it would have been the right thing to do.)
Anyway, Hasen makes this argument:
“Coleman’s constitutional arguments are getting a fair hearing before the Minnesota Supreme Court. State courts are fully empowered — and constitutionally obligated — to consider a litigant’s federal constitutional claims. Three of the five justices hearing the case have Republican Party backgrounds, and one was appointed by independent Gov. Jesse Ventura. This is not a court stacked with partisans against Coleman.
If Coleman loses before the Minnesota Supreme Court, he might choose to give up. But some Republican senators are encouraging him to fight on in the federal courts, and encouraging Minnesota Gov. Tim Pawlenty not to sign a certificate of election for Franken.
If Coleman continues the fight by filing a new federal lawsuit, the U.S. Senate should not wait for the outcome before seating Franken provisionally. There’s no argument that Coleman could make in a new federal lawsuit that he can’t make in the current litigation. The only reason for a new federal lawsuit would be to delay the Democrats’ ability to obtain a 60th vote — a potentially filibuster-proof majority in the Senate. Even if Pawlenty chooses not to sign the certificate of election, the Senate, as the constitutionally authorized arbiter of disputed Senate elections, should declare Franken the provisional winner.”
The most likely legal route for Coleman is a petititon for review by the US Supreme Court. A separate action in federal court likely would be precluded, as most first year law students would tell you. (Most of us promptly forget these bits of arcana and have to go look it up again later.)
There is no legal basis for seating a senator “provisionally”. Would all of his votes be provisional as well? Senatorial “backsies”? No, as tiresome as it has become, we have to let the two boys work this out for themselves, in their own sandbox.
It seems to me also that “provisional seating” would have to be followed by “provisional voting,” a pretty much ungovernable procedure.
While those who like instant answers (media folks included) are apparently very uncomfortable with our legal procedures for determining the outcome of elections, it’s probably good that they take the time that they do:
By the time a final decision is reached, most people will be so bored with it all that whoever gets the nod will just get a shrug from most of the voters, leaving the losing partisans to cry in their beer.
It beats settling things in the heated moments of the day after a close election, and probably has a lot to do with our generally peaceful power transitions.
It looks like Tim Pawlenty could once again be gambling his political future for Coleman’s benefit. Hopefully he will see the writing on the wall this time!