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Franken may have won by losing at MN Supreme Court

Franken may have won by losing at MN Supreme Court
By Eric Black

In rejecting Al Franken’s request for an election certificate, the Minnesota Supreme Court may have also thrown him a bone.

Specifically, the justices, writing unanimously, apparently tipped their hand on on how they will rule on the question of whether Franken will be entitled to a certificate if Norm Coleman tries to keep the case going in a federal court or in the U.S. Supreme Court. The Minnesota Supremes apparently indicated that, under that scenario, Franken gets his certificate when the state process is done, even if it’s still alive in federal court.

If things go the way they seem to be heading, this could result in Franken being seated in the Senate weeks or months earlier than he otherwise might be. That’s getting ahead of the process, but election law experts agreed with this analysis.

First: State law says that, in the case of an election contest such as the Coleman contest now being argued in St. Paul, “an election certificate shall not be issued until a court of proper jurisdiction has finally determined the contest.” Notwithstanding that very clear language, Franken’s lawyers petititoned the Minnesota Supreme Court for an order requiring Gov. Pawlenty and Secretary of State Mark Ritchie to issue an election certificate to Franken now. That always seemed like a long shot, and today, the Court rejected it.

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Second: But while the court was thinking it over, Franken-Coleman obsessives like me wondered what that “court of proper jurisdiction” language might mean. Would the certificate be issued when the three-judge panel decided who had won? What if Coleman appealed to the State Supreme Court, would that delay the issuance? If it went to the U.S. Supreme Court? And especially, since this would be the longest potential post-trial delay, what would happen if Coleman files a fresh case in federal court, which could result in a whole new trial, raising the possibility that the Senate seat remains open for many months yet.

Secretary of State Ritchie, who has to sign the election certificate, has taken the position that the certificate is issued when the state courts are done and have determined who is entitled to the certificate. Gov. Pawlenty, who is supposed to create and sign the certificate (before Ritchie), has said that he thinks an appeal to the U.S. Supreme Court would be reason to wait, and implied (his statement wasn’t clear) that if the case is alive in any court, the petition waits.

Third: I have no idea whether the Minnesota Supremes did this on purpose (they weren’t asked the question in Number Two above) but in answering Question One (no, Mr. Franken, you do not get the certificate now) they made fairly clear what they think about Question Two (when the state courts are done with the case, the certificate must be issued, even if the case continues in federal court.

In writing the ruling, the state Supremes described the statute on certificates as providing that “a certificate of election cannot be issued until the state courts have finally decided an election contest.”

If you’re paying close attention, you get the point by now. They didn’t pick up the somewhat mysterious “court of proper jurisdiction” language from the actual statute (which raises the question: just what is the court of proper jurisdiction”) but referred throughout the opinion to the state courts.

Just to make sure I wasn’t imagining things, I asked two big-time experts on this case and on election law, and they agreed that, intentionally or not, the court had tipped its hand about how it feels about the question Number Two.

David Schultz of Hamline University, who teaches election law, said “Yes, I’m thinking they have tipped their hand. They’re saying that once the state Supreme Court has reached their decision, the certificate question is over.” Sure, Coleman can appeal to the U.S. Supreme Court or he can try to start a new federal case. Theoretically, if he wins on either of those strategies, he might yet get to return to the Senate. But the Minnesota courts control the interpretation of the Minnesota law that tells Minnesota officials when to issue an election certificate.”

Coleman could conceivably get the U.S. Supreme Court or a federal judge to issue a stay to keep a certificate from being issued, but that struck both Schultz, and law Professor Guy Uriel-Charles as a serious long shot. Once the case leaves the Minnesota court system, it has to be based on federal claims, like Team Coleman’s famous “equal protection” argument. (“Equal protection is langugage in the U.S. Constitution’s 14th Amendment. Coleman has been arguing that the disparities in ballot-counting practices between different Minnesota counties creates an equal protection problem. That logic was an important part of the reason that the Supreme Court got involved in the Florida 2000 recount in the famous Bush v. Gore case.) But those federal law considerations would not directly affect whether the state of Minnesota issues a certificate of election.

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“It’s pretty sound standard legal analysis to rule that the state court is the court of last resort on the certificate question,”  said Uriel-Charles, an election law specialist, now at Duke but formerly of the University of Minnesota. He said Pawlenty’s interpretation of the need to wait for federal courts to rule is wrong. The federal remedy, if the state has wrongly issued a certificate, would be for the Senate to refuse to seat Franken.

“I would say that the court more than tipped its hand. It really clarified that if Franken wins at the Minnesota Supreme Court, he’s entitled to the certificate,” said Uriel-Charles, chuckling that Franken had managed to win by losing. Team Franken took what Uriel-Charles called “a bogus argument” to the state Supreme Court, “but ends up getting from the court a fairly strong clarificiation that if you win, you are entitled to your certificate. It’s a clear win for Franken, just not on the issue that he brought up. He goes up there and shoots a bullet in one direction and a duck comes down from another direction.”

I should add that this piece depends fairly heavily on the assumption that Franken’s current status as the apparent winner will survive both the contest and the state Supreme Court phase. If Coleman wins the contest, or is successful on appeal to the state Supreme Court, and if it was Franken taking the cast to a federal court, the same analysis would apply to a state certificate for Coleman.