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Advance checklist for the MN Supremes' Franken-Coleman ruling

My day is booked up with personal business (taking my boy to get his braces off, then to the Twins Game to celebrate -- Go Nick Blackburn). And so, as a certifiable member of the Franken-Coleman obsessed community, I naturally worry that the MN Supremes will seize on my absence from my post to issue the long-awaited opinion. In case they do, I wanted to leave behind my present and future checklist of what I'd be looking for if I had the Supreme ruling in front of me. To wit:

Remand? Remember, there is essentially no way for the Supremes to rule that Coleman won the election. The biggest possible win for him would be an order remanding the case back to the Three-Judge Election Contest panel with orders to reconsider some of their previous rulings or to count some subset of the votes that Coleman wants counted. If they don't remand the case -- and after the oral arguments two weeks ago, I don't know of a single neutral commentator who thinks that they will -- they will almost certainly affirm the lower-court ruling that Al Franken got the most legally cast votes. (A couple of other long-shot potential outcomes that used to slosh around -- like calling for a do-over election, or using a mathematical formula to adjust the most recent results based on probabilities -- seem to have disappeared.) Even if there is a remand, the odds probably still favor Franken -- since he would go into any additional counting with a 312-vote lead. But if there is a remand, we will not have a senator for a goodly while yet.

Unanimous? The Supremes will try to reach unanimty. If they do, it will increase the likelihood that this is the end of the road for Coleman's legal case. The state Canvassing Board -- which included a Dem. Secretary of State plus two presumptively Republican Pawlenty appointees -- ruled unanimously that Franken had the most votes. The Three-Judge election court panel -- one an appointee of DFLer Rudy Perpich, one appointed by moderate Repub. Arne Carlson, one appointed by Jesse Ventura -- ruled unanimously that Franken was entitled to an election certificate. The five Supreme Court justices who heard the appeal included two (presumptively Republican) Pawlenty appointees. No matter how much some Republs may want to believe that they've been robbed by Dems, it's getting harder and harder to make that case with a straight face. A unanimous ruling will also be treated with more respect than a divided ruling if the decision is appealed. And it will translate into additional pressure on Norm Coleman to concede.

Order to Pawlenty? Does the ruling clearly order Gov. Pawlenty to certify Franken as the winner? The technicalities of the state law (which contains no deadline for the governor to issue an election certificate after the conclusion of an election contest) and recent statements by Pawlenty have left open the possibility that TPaw may wait a while, study the Supreme Court ruling, see whether Coleman files an appeal and whether Coleman can get a federal judge or a U.S. Supreme Court justice to issue a stay.

He has also said he would not unnecessarily delay things. But how long would he wait? But the clearest thing he has said is that he will follow an order of the court. If the Supreme Court finds that Franken is entitled to a certificate of election, they could explicitly order Pawlenty to create and sign the certificate within a specified number of days. Secretary of State Mark Ritchie must also sign, but he is ready. (If, during those few days, Coleman is able to get a stay from a federal court or from the U.S. Supremes, Pawlenty would be justified in waiting indefinitely, as long as that stay remained in effect.) I have noted, ad nauseum, that whenever Pawlenty is asked about the certificate issue, he always works into his answer a reference to the effect that he will issue the certificate "if the court orders" him to.

Several people have suggested to me that by these remarks, Pawlenty is appealing to the court, saying, in essence: "Take me off the hook; give me a clear, direct order (so I can tell any disappointed Republicans that I had no choice)."

I am agnostic on this theory, but it seems plausible. On the other hand, the Supreme Court likes to show respect for the collateral branches of the state government. It has also been suggested to me that the court could deal with the matter diplomatically without seeming to boss the guv around. For example, in a previous ruling, the Supremes said that  "a certificate of election cannot be issued until the state courts have finally decided an election contest."  Perhaps they will politely notify the world, without mentioning the governor, that their ruling constitutes the end of the of the state court process.

Basis for the ruling?
Especially after the oral arguments, most recent speculation has suggested that, rather than deciding the case on Coleman's constitutional arguments (mostly that the disparity of treatment of absentee ballots across county lines) violated the Constitution's "equal protection" clause), the court may simply agree with the Election Contest Court that Coleman failed to put in enough evidence to make the constitutional argument relevant. If so, it may diminish Coleman's chance of going on to other courts for relief. One question that will dog Team Coleman in the post-case analysis will be: why didn't they prove the basic elements of acceptability for more ballots, even after the ThreeJudgePanel told them that they would consider the ballots one-by-one, and would count only ballots for which they had proof that all of the requirements had been fulfilled.

Will Coleman go further? I don't know and I don't guess we'll find this out when the ruling is published (just as Cuddyer is rounding third with the go-ahead run). Coleman might have already decided to issue a gracious concession if he loses the current round. He might have already decided to immediately announce that he is appealing to the U.S. Supreme Court. But my guess is that on Day One of the next phase, his team will announce that they need to study the opinion before deciding.

If he does appeal, can Coleman get a stay? I've written about that recently. The odds are steep. If no stay, the petition for a Supreme Court review can sit in Washington for months. Unlike the state Supreme Court, which was required by state law to take the appeal of the Election Contest Court, the U.S. Supremes are not required to hear the case and, in the end, are unlikely to do so. But, if no stay and no clear orders from the MN Supremes, one could imagine Pawlenty saying he has to wait to see if the Supreme Court will take the case. That would be pretty outrageous (and if it occurred Team Franken would surely go back to the MN Supremes and ask them to order Pawlenty to sign the certificate).

But the greater likelihood is that if there is no stay, after a few days, Pawlenty probably issues the certificate, Franken gets on the next plane to D.C. and the matter will be squarely before the only body that, in the end, can seat a senator.

Do the Senate Repubs filibuster?
Various Senate Repubs, led by Tex. Sen John Cornyn, chair of the National Republican Senatorial Committee, have urged Coleman to keep fighting and promised to support him if he does. But I do not believe any of them have explicitly threatened to mount a filibuster against the seating of Franken if he has an election certificate. And, personally, I don't think they will filibuster. In a previous piece, I wrote (and still believe):

"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."

So that's some of what I would be thinking/writing if the ruling comes out while son and I are in the Dome this afternoon. If not, I'll try not to just keep recycling these points until it does come out.

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Comments (3)

Nice summary.

Have fun at the celebratory ball game.

Lucked out! No Senate news and a Twins win!

Good summary Eric.

Call me Quasimodo, I have a hunch that the Supreme Court's decision will not be unanimous.