Photo courtesy of The UpTake
Al Franken and wife Franni met with the press Monday night to hail the judges’ decision that declared him the winner of Minnesota’s contested U.S. Senate race.
Let us not bury the lede here. You surely have heard by now, and teammate Jay Weiner posted an excellent MinnPost summary of it late last night: TheThreeJudges have ruled.
As expected, the ruling favored Al Franken and declared him entitled to a certificate of election. But I’m not sure anyone expected how firmly and thoroughly TheThree rejected every jot and tittle (whatever the heck a tittle is) of Norm Coleman’s facts and arguments. Ouch.
I’ve written that if the ruling was unanimous, strongly argued and seemed to discuss thoroughly Coleman’s main arguments, it might have extra impact as the case moves forward to the Minnesota Supreme Court and possibly beyond. Check, check and check.
But the ruling also caught your humble and obedient ink-stained wretch right after posting day one of a two-day series on the likeliest way forward in the Coleman-Franken recount-from-heck. The ruling, while consistent with the series so far, is a pretty big distraction. It is the biggest development in the case since just before Christmas when Coleman’s small early lead in the recount turned into a small Franken lead (that has only grown since).
For those, like your ink-stained wretch, who are trying to understand the likely future path of the case, there was another medium-sized development earlier Monday when Gov. Tim Pawlenty threw what looked like a pretty big curve. I’m still trying to figure out how big and how curvy. Recent clarifications from the guv’s spokester have convinced me it’s at least within the strike zone.
Yesterday, on MPR, Pawlenty asserted that, even if the Minnesota Supreme Court rules that Al Franken has won the Senate election and is entitled to an election certificate, Pawlenty has the discretion to postpone the issuance of the certificate if he thinks there might be reasonable grounds for a further appeal.
Before Monday, Pawlenty’s position, subject to nuance and ambiguity, had been that he would issue the certificate after the Minnesota Supreme Court made a final ruling, unless another court placed a stay on the issuance. On MPR’s “Mid-Day,” Pawlenty seemed to retreat from that. When asked if he would issue a certificate if no court rulings blocked him from doing so, he waffled. Here is the exact quote:
In a series of email exchanges with Pawlenty’s spokester, Brian McClung, I sought to clarify what level of discretion the guv was claiming over the issuance of the certificate. At first, McClung pointed out that there is no deadline in the law for the issuance of the certificate after the conclusion of the Contest Court process and state Supreme Court appeal. It sounded as if Pawlenty was claiming the right to indefinitely postpone the certificate. But in a subsequent email, McClung said no, “Governor Pawlenty has no intention of withholding the election certificate indefinitely. He is simply stating that he’ll make his decision when the state court process is complete.”
I specifically asked whether the governor believes that he would have discretion over the timing of the certificate, even if the state Supreme Court explicitly orders him to issue the certificate within a particular time-frame. Noting that he had specifically sought clarification from Pawlenty on the question, McClung replied:
The Recap, Steps 1,2,3
Which brings us roughly back to where we left off in yesterday’s Part 1 of our odyssey into the future of the case.
In Step One, the likelihood was that the three-judge Contest Court was expected to rule very soon (got that right) that Franken had “received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election.” (That language, which has been quite helpful to Team Franken, is straight from Minn. Stat. 209.12, describing ” the only question to be decided by the court” in an election contest.)
Step Two recognized the certainty that Team Coleman would appeal that case to the Minnesota Supremes. (He said instantly yesterday that he would do so.) In Step Three, I shared the general expectation (this one less of a sure thing, although stronger after yesterday’s ruling) that the state Supremes would affirm the Contest court ruling. (I acknowledged a reasonable but lesser possibility — actually Coleman’s best remaining hope — that the MN Supremes would remand the case to the lower court for more counting, in which case “Whoa Nellie!” the rest of my timeline is out the window.)
Like a fool, I hazarded a prediction that, if each of remaining bounces of the ball hops in the likeliest direction, Franken could be seated in the Senate in late May or, more likely, sometime in June — even if Norm Coleman proceeds with other legal challenges. I don’t know what possessed me to risk publishing such an estimate, considering all the surprises and delays in the case to date. But I’ll stick by it, even in light of Pawlenty’s new curveball, with a reminder and caveat that the timeline rests on the assumption that, as on the Metrodome’s artificial turf, the ball doesn’t take any unexpected bounces.
At the bottom of Part 1, I wrote that: “For those interested in the speed of the process, it will be important whether the Supremes include a specific order to Gov. Pawlenty that he create and sign a certificate of election.” In light of today’s curveball, that issue looks more important than it did yesterday. Given Pawlenty’s Monday statement, followed by the clarification that he will obey the orders of the court, I suspect Franken’s legal team will urge the Supremes to include a time-specific order for the issuance of the certificate.
Step 4: What might Pawlenty do?
There are more possible steps after Step 4, involving the U.S. Supreme Court, lower federal courts and the Senate itself. But the key legal question at the beginning of Step 4 is whether a ruling by the Minnesota Supreme constitutes the end of the “state court” process, because state law requires the governor to issue and sign, and the secretary of state to countersign the election certificate at the end of the state court process. If Franken gets his hands on a certificate, he is about 98.7 percent of the way toward being seated, at least provisionally, in the U.S. Senate.
Since Minnesota election certificates are a creation of state law, the MN Supremes ought to have pretty close to the last word on the matter. The law actually says:
That language doesn’t tell us which is the final “court of proper jurisdiction.” Perhaps it is the U.S. Supreme Court, which has the right to review a state supreme court ruling. But in a March 6 ruling, ironically a ruling that went in favor of Coleman, the state Supreme Court said that:
Assuming that the MN Supremes chose their words carefully (after all, they could have just picked up the “court of proper jurisdiction” language from the statute), it seems unlikely that the U.S. Supreme Court would be considered a Minnesota “state court.” Much more likely, the MN Supremes were signaling that, for purposes of issuing the certificate, their ruling would be final. (That doesn’t mean Coleman can’t appeal, only that the appeal shouldn’t prevent the issuance of the certificate.)
Secretary of State Mark Ritchie has stated that he will be ready to sign a certificate after the MN Supreme Court rules. But, under state law, Ritchie has nothing to sign until Pawlenty creates and signs first. Before yesterday’s curveball, Pawlenty had NOT said that he would certify and sign after the state Supreme Court ruled. He HAD always said that he would “follow the law,” including respecting a stay that may be issued while the case is on appeal. Back in February, he even said that he hopes the courts will give him some guidance on when he can issue and sign the certificate.
As a political matter, Pawlenty may feel conflicting impulses. As a loyal Republican, he has no partisan incentive to ease or speed Franken’s path to Washington. Impeding Franken’s progress would be popular with the Repub base, but would make him appear a hyperpartisan to the rest of the spectrum. His statements suggest that he might hesitate, for as long as the Supreme Court order allows, to give Coleman a chance to seek a stay. But as a legal matter, according to the “I will follow the law and abide by court orders” principles he has laid down, if Pawlenty has an order from the state Supreme Court to sign the certificate, and no offsetting stay, he will almost certainly sign the certificate. If so, Step 5 could be the one where Franken presents himself to the Senate with a certificate. But we can’t get there without considering a possible Step 4.5.
Step 4.5: The question of a stay
It’s possible, some sources think likely, that Coleman will concede if the MN Supreme Court rules against him. It’s possible, I don’t know how likely, that he will try to find another court that will see merits in his equal protection argument that the previous courts have not seen. Even if he does continue to sue or appeal, Franken will probably already be seated in the Senate unless Coleman gets a court order stopping the issuance of the certificate (or unless things go kablooie at Step 5, below).
The election law experts on whom we, the journalistically obsessed, have relied during coverage of this case, tell me there are three theoretically possible places, all highly unlikely, at which Coleman could shop for a stay:
- In Monday’s Strib piece, Professor Guy-Uriel Charles predicted that Coleman would ask the MN Supreme Court to stay its own order to give time for the U.S. Supreme Court to decide whether it wanted to get involved in the case. But even Charles, who floated the possibility, said it was unlikely that the state court would do so. I believe the likelihood is greater of the exact opposite: that if the Supreme Court affirms the Contest Court, it will explicitly order that a certificate be promptly issued.
- Coleman could ask a federal district judge for a temporary restraining order on the issuance of a certificate, on the basis that he will be pressing his federal constitutional claims in a fresh federal court case. Professor Ned Foley said this was very unlikely to work, unless a judge just wanted a day or two to think about whether there was reason for such a stay.
- Third, and probably most likely (but still unlikely), if Coleman immediately files notice that he is appealing the MN Supreme Court decision to the U.S. Supreme Court, he could ask a single justice of the U.S. Supreme court to block the issuance of a certificate, to freeze the action until more justices could weigh in. This is the kind of stay sometimes used in emergencies, to block executions or prevent some other form of irreparable harm that will occur. A short-term stay like this is often only good for a matter of hours, unless it is soon supported by a majority of the court. Almost all of the commentary I have seen suggests that the High Court is unlikely to take this case. And if it is clear to them that they won’t be taking it, they will have no incentive to issue a stay. But, of the three possibilities for a stay, this one seems the most promising. If a majority of the Supreme Court agrees to stay the issuance of the certificate, it will mean that in all likelihood the Supreme Court plans to hear the case and then, whoa Nellie again, my May-June timeline is out the window.
Step 5: The Senate floor
But if the MN Supremes rule in Franken’s favor, and if the possibilities of a stay are as unlikely as suggested above, and if Gov. Pawlenty follows the MN Supremes’ order, Franken will receive a certificate of election soon after the state Supremes rule.
Franken will waste little time presenting himself, certificate in hand, to the Senate, applying for membership. The Senate Dem leadership was interested in seating him, on a provisional basis, months ago, but were assured that all 41 Senate Repubs would unite to sustain a filibuster. The argument at the time was that no state election had been issued.
The Step 5 drama, if there is any, will revolve around the question: Will Senate Repubs continue to block the seating of Franken if he has a signed certificate?
Sen. John Cornyn, R-Texas and chair of the National Republican Senatorial Committee, has threatened “World War III” if the Dems try to seat Franken prematurely. Senate Republican Leader Mitch McConnell of Kentucky said in March that he would encourage Coleman to take his case to federal court and commented that the fight over the Minnesota seat “seems endless at the moment.” Other Senate Repubs have encouraged Coleman to fight on and have raised money to help him do so.
But even Cornyn, whose statements have been the most belligerent, has never said that he would filibuster to block the seating of a senator-elect who has an election certificate. Cornyn’s spokester, Brian Walsh, emailed me that every time Cornyn has talked about a filibuster to prevent the seating of Franken, he has explicitly linked it to the issue seating him without a certificate. (I asked, explicitly, whether Cornyn would rule out a filibuster if Franken has a certificate. Walsh did not reply to that email.)
Given that 39 of the 41 Republicans would have to stick together on this issue to sustain a filibuster, I had assumed that a few rank-breakers from purple states — like the three that broke party lines to pass the Obama stimulus bill — would settle the matter. But people who know much more about the Senate than I do assured me that if McConnell made it a party leadership matter, he could probably hold his ranks.
It is nearly unprecedented for the Senate to decline to seat a prospective member once the certificate is presented. In the unpleasant week after disgraced Illinois governor appointed Roland Burriss to the Senate, Democrats were looking for a way to keep Burriss out of the Senate. It was Republicans who insisted that, since Burriss had a legal certificate of appointment, he could not be denied his seat. This would certainly be thrown in Repub faces if they took the opposite position on Franken. But I can’t assume that fear of being called hypocrites will be the decisive consideration.
But I do think this: The precedent that certificate-holding members get seated is a strong one. If, for the sake of postponing the seating of Franken, Republicans were to throw that principle overboard, it could come back to bite them, big time. They would essentially risk that, after the next election, the Dem majority could make an example of any newly elected or freshly re-elected Republican whose election had some clouds over it.
At the moment, in the wake of the ruling by the panel, the chance that Coleman will carry his fight beyond the Minnesota Supreme Court seems somewhat diminished. He has every right to do so, and may do so, although (unlike the appeal to the MN Supremes) he is not guaranteed that other courts will even take the case. There are legal rules governing such decisions that we’ll save for another day. The U.S. Supreme Court has very seldom taken a case arising from a Senate election dispute (none, actually, in the last 35 years). The U.S. Supremes can easily cite Article I of the Constitution, which gives the Senate the right to judge the elections of its own members. (That tactic was not available to them in Bush v. Gore.)
But in any event, if Franken has a certificate, the Senate will face the question sooner than the justices. If the Senate Repubs filibuster the issue, they will risk serious and, I would think, potentially devastating retaliation after the next election. If they seat him, in late May or June when he may have a certificate, Coleman can still pursue his legal options, and he will no longer be accused (unfairly, in my view) of dilatory tactics. Because Minnesota will have two U.S. senators.