Minnesota Sec. of State to Franken: No, I'm Not Certifying The Election For You
Minnesota Sec. of State Mark Ritchie has just released a statement in response to the Franken campaign's request for a certificate of election to be issued today, which would send Franken to the Senate while Norm Coleman pursues his legal challenge to the election result.
The answer is a definite "No":
"Minnesota law is very clear on when a certificate of election can be issued. Neither the governor nor I may sign a certificate of election in the U.S. Senate race until all election contests have reached a final determination. Even if the governor issues a certificate of election prior to the conclusion of the contest phase, I will not sign it."
So unless Franken goes to court and can succeed in convincing a judge to order a certificate to be signed, he's out of luck for the weeks or months that this litigation could take. As we've seen from the haggling on Capitol Hill over Roland Burris' certificate of appointment, no certificate equals no seat.
Late Update: Gov. Tim Pawlenty has also just released a statement, turning Franken down and citing the relevant state statutes. The statement is available after the jump.
Saint Paul - The following is a statement from Governor Tim Pawlenty regarding the request from Al Franken's attorney to issue a certificate of election.
"I have a duty to follow state law and our statutes are clear on this issue. I am prohibited from issuing a certificate of election until the election contest in the courts has been resolved."
Please see Minnesota Statutes 204C.40, Subdivision 2:
204C.40 CERTIFICATES OF ELECTION.
Subdivision 2. Time of issuance; certain offices.No certificate of election shall be issued until seven days after the canvassing board has declared the result of the election. In case of a contest, an election certificate shall not be issued until a court of proper jurisdiction has finally determined the contest. This subdivision shall not apply to candidates elected to the office of state senator or representative.
Issue. A. Provisional. Certification.
It's not rocket science!
January 12, 2009 1:40 PM | Reply | Permalink
There is no such thing under MN law.
January 12, 2009 3:14 PM | Reply | Permalink
...but does that mean it can't be done? I'm not convinced that since MN law is a blank slate on the matter that it can't be done.
January 12, 2009 3:55 PM | Reply | Permalink
Obviously, you're not an attorney.
And to be perfectly blunt, considering what happened repeatedly over the past eight years, we've had more than our fill of public officials who willingly apply fanciful and / or novel interpretations of long-established legal precedents or principles, simply to achieve their short-term political ends.
January 12, 2009 10:21 PM | Reply | Permalink
What would be the legal basis for ordering issuing Provisional Certification? Who would do this? Do you think the Senate should seat Franken "provisionally"? What would be there legal justification for seating Franken -- given the no one in Minnesota is authorized to declare Franken the winner at this time?
January 12, 2009 4:27 PM | Reply | Permalink
I'm as impatient to get this over with as anybody, but this is the right move by the Secretary of State. If Minnesota does not allow anybody to be seated until all challenges are exhausted, then the Secretary of State has no choice. And this will help deflate Coleman's inevitable accusations of bias in the process (not that it will stop him from trying anyway).
January 12, 2009 1:46 PM | Reply | Permalink
Haven't bothered to look at MN law on the subject. I take the CW at face value
Still it looks to me as if Franken's lawyers are setting up a cross-claim for injunctive relief in answer to the Coleman suit ..something like "this suit is junk and if you don't dismiss, you have the authority to mandate a provisional certificate..." or paragraphs of pleading to that effect
They need not have great confidence in prevailing with the remedy but it frames their argument and adds urgency to a prompt court decision
January 12, 2009 1:47 PM | Reply | Permalink
Given the speed with which the MN-SC dispatched Coleman's claims, I'd doubt the 3-judge panel will be inclined to be much more patient. They'll listen politely, then ask "Where's the beef?". After a lot of handwaving from Coleman's lawyer, they'll toss the whole mess out.
While it's theoretically possible Coleman can keep this going ad infinitum with frivolous suits, the MN-SC has had a pretty no-nonsense approach up until now, and I don't see them brooking such a dilatory tactic.
January 12, 2009 3:29 PM | Reply | Permalink
Hi Man's Best Friend
I think you meant: "Given the speed with which the MN-SC dispatched FRANKEN'S claims" (not Coleman's claims).
Also, with regards to the 3 judge panel hearing Coleman's challenge, they will probably "hear Coleman out -- allow him to make his case".
As I understand the process, Coleman's case can not be "thrown out". Coleman has legally contested the election and the court (3 judge panel) first, hear the case and Coleman's contentions regarding the recount and then rule on whether any ballots were, as Coleman claims, miscounted. The time line allowed for the challenge is prescribed by Minnesota law.
It is my understanding the once the challenge is completed and a ruling has been made on the final vote totals, a certification MUST BE signed by the Secretary of State and the Governor -- and this requirement is independent of legal remedy which Coleman might wish to pursue, were the 3 judge panel determines Franken did in fact win most legally cast votes during the election.
January 12, 2009 4:20 PM | Reply | Permalink
No, I think he did mean "the speed with which the MN-SC dispatched COLEMAN'S claims." Man's_best_friend is probably referring to the fact that the MN-SC rejected most of Coleman's pleadings during the recount.
January 12, 2009 5:55 PM | Reply | Permalink
Minnesota needs and deserves two senators at this time. I want my representation!
January 12, 2009 1:51 PM | Reply | Permalink
That's the best available argument.
January 12, 2009 2:05 PM | Reply | Permalink
Minnesota election law does not permit for a winner to be declared -- even on a provisional basis -- until after a legal contest has been resolved. This is a fact. You (we) can not have two senators until after Coleman has had the opportunity to complete is contest challenging the results of the election results as determined by the Minnesota Canvasing Board.
January 12, 2009 3:53 PM | Reply | Permalink
Franken is dealing with the Huns and he better be prepared to pull out all stops or they will keep him from that seat for as long as they can.
January 12, 2009 2:02 PM | Reply | Permalink
Saw on TV a couple of weeks ago, in an analysis of the Actual Senate Rules regarding the Burris appointment, that the sec'o'state's sig is NOT REQUIRED by the US Senate. It's a 'would be nice' kind of preference.
And, no kidding, I think this was on the Daily Show. But frankly, these days their research beats the product on most of the network news shows. Maybe the DS needs a more solid foundation to build their comedy on.
January 12, 2009 2:51 PM | Reply | Permalink
In Illinois, the Governor had certified the appointment, but the Secretary of State had not counter-signed. In Minnesota, however, Governor has not signed the certificate, so the situation is different.
January 12, 2009 3:23 PM | Reply | Permalink
Why not draw it out for the entire six years. Since there is no guarantee for the people of MN, just for the prospective Senators. Couldn't you just keep filing a whole host of frivolous lawsuits even if you lost by a million votes? Of course there should be a provisional appointee. The burden of proof should be on the challenger after a full recount that is sanctioned by the appropriate state bodies. I am tired of the tyranny of the minority when it comes to Republicans being out of power. They still won't let it go. Here in California, they hold the budget and taxes (and therefore programs) hostage. In MN they just keep feeling like they can get their way eventually if the just hold OUR breath long enough until WE turn blue. Forget disaster capitalism. This is disaster politics, and like a spoiled rotten brat, the only way is to say "no" with finality and remove the offending brat to where he or she will not do any more harm.
January 12, 2009 3:13 PM | Reply | Permalink
Plenary power and subject matter preclusion.
Courts have plenary power to control the filing of lawsuits. In extreme cases courts issue orders barring a party from initiating additional lawsuits.
If a suit is brought concerning a certain matter, and is resolved by a final decision, the parties cannot proceed with a second suit that addresses the same subject, even if a party wants to argue a separate issue. Any attempts to bring serial lawsuits should be dismissed early on through motions to dismiss or summary judgments. Any attorney filing a frivolous lawsuit (including one obviously barred) would be subject to personal sactions.
January 12, 2009 5:12 PM | Reply | Permalink
Why doesn't everyone just take a deep breath and let the Minnesota Supreme Court follow Minnesota law and do its work. So far, the Minnesota Court has been acting as expeditiously as seems possible, and it will probably continue to do so. While I don't live in MN, I supported Franken with a few bucks and hope he prevails (I think he will), but it is important to follow the law. We still regret the short cuts taken by the US Supreme Court taken back in 2000.
January 12, 2009 5:22 PM | Reply | Permalink
Hi There Mr. E.
Question. When Coleman filed a challenge questioning the election results certified by the Canvassing Board, did he file what would technically be called a "law suit"? My understanding is that what Coleman did in "contesting the election" did not involve "a law suit" even though it challenge is going before a 3 judge panel. Correct?
January 12, 2009 5:23 PM | Reply | Permalink