Now Franken Is Heading To Court -- And He Wants That Certificate
Al Franken's lawyers really don't mess around. In a conference call with reporters just now, lead Franken attorney Marc Elias announced that the campaign is filing a lawsuit at the state Supreme Court to force GOP Gov. Tim Pawlenty and Democratic Secretary of State Mark Ritchie to issue Franken a certificate of election, and send him to the Senate.
Elias placed a request with Pawlenty and Ritchie yesterday, which was promptly rejected, arguing that Franken was entitled to a certificate contrary to the conventional wisdom that state law blocks the issuing of a certificate until after Norm Coleman's lawsuit to overturn the result is settled.
Not so, Elias argues, saying that a different section of the same law would actually require the issuing of a certificate in a legislative contest, with its discussion of revoking an already-issued certificate if the contest concludes with the original loser now on top. "So there is a tension between these two provisions," Elias said. But he thinks the provision he's relying upon will trump the other because it is the more specific of the two.
Elias also cited the U.S. Constitution's requirement that a legislative chamber is the arbiter of a disputed election, as opposed to courts. Elias did then have to acknowledge that Senate Republicans could still potentially filibuster against seating Franken, though he did say that he suspects the chances of that "would all but disappear."
Elias reiterated that this would not cut off Coleman's right to challenge the result. "That's one of the great things about our country, is that even people with non-meritorious claims get to go to court," Elias quipped. But beyond that, Elias said, the act of Coleman going to court should not be able to deprive Minnesota of full representation, and he thinks both state law and the U.S. Constitution are on his side.
Even if Elias is right, and I don't think so, this is a bad move in terms gaining some legitimacy for Franken. It can't go over well with the judges, though I'm thinking more of Franken being an effective --- and reelectable --- senator. This makes Franken more vulnerable to charges of trying to get around the law. Even though it entails a delay, he would be better off letting Coleman have his challenge heard and dismissed. My one hesitation is that Franken's lawyers have generally made the right calls.
January 13, 2009 4:59 PM | Reply | Permalink
Good thing they're not taking advice from you.
Democrats have generally allowed Republicans to call the shots while they sit back and try to be nice so people will like them. Franken hasn't done that, to his credit, which is why he's going to be the next Senator from Minnesota.
January 13, 2009 5:29 PM | Reply | Permalink
Agreed,
I support Franken doing this. MN needs representation and Coleman should be conceeding. Since he is not gracious enough to do so, then Franken should be seated until it is found otherwise.
MN is being cheated here...NOT Coleman. It is therefore in the interest of the State to do what is in the best interest of the citizens...not Coleman.
Seat Franken.
January 13, 2009 7:05 PM | Reply | Permalink
"This makes Franken more vulnerable to charges of trying to get around the law."
But he's going through the courts, who by definition interpret the law. If you are going to try and go around something, you wouldn't be taking the road through that same something. It's like trying to avoid the police by visiting the police station.
January 13, 2009 5:49 PM | Reply | Permalink
Oh no you mean Franken might be seated by activist judges?! Oh no!
January 13, 2009 8:55 PM | Reply | Permalink
Oh well let's think about this. Hmmm 1, (one) Franken lawsuit that has some merit based in the law, compared to several already rejected and incredibly frivilous lawsuits from Coleman... Yep. you're right, I can see why the judges would be pissed at Franken. Maybe you should apply as an intern to Harry Reid. He can show you how to raise Democratic capitulation and timidity to an art form.
January 13, 2009 5:51 PM | Reply | Permalink
Precisely the opposite.
This frames the issue and urgency of resolution
NB
January 13, 2009 8:31 PM | Reply | Permalink
Laws are often written with latent ambiguities. This particular law is rarely tested, so it is hardly surprising the contradiction was not noticed until now. Indeed, O v O is about the only case on point here. Pawlenty had his seven days to certify, so Elias properly raises this question in timely fashion and deserves prompt guidance from the court. Justice delayed is justice denied.
January 14, 2009 1:12 AM | Reply | Permalink
The law is somewhat ambiguous. It does state that the election certificate shouldn't be issued when there is a pending contest. Minn. Stat 204C.40, Subd. 2. However, in another part of the election law, a statute specifically states that the *revocation* of the election certificate is the remedy for a successful election contest. Minn. Stat. 204C.40, Subd. 1. Why would this be the remedy unless a certificate was supposed to be issued?
The question is what makes the most sense. I do think that there is a pretty good argument that the certificate should issue and that the contest can go on. This is because of the need for Minnesota to have an acting Senator. A revocation of the certificate would be the remedy if Normy were to prevail.
January 13, 2009 6:09 PM | Reply | Permalink
Subsection 2 says:
Elias seems to be hanging his hat on saying the MN court is not a "court of proper jurisdiction", but the logic seems a bit tortured since other parts of MN law clearly designate this court as the court for election contests.January 13, 2009 6:20 PM | Reply | Permalink
Yes, but subd. 1 says,
If none were issued, how could it be revoked? A timely contest would by definition come before the issuance of the certificate. These two provision are at odds with each other.
I am not sure how to resolve it other than to take practical interests into account. A person should not be able to hold up a certificate with an election challenge because it is too important to get that person in the Senate. That is what I would argue.
January 13, 2009 6:46 PM | Reply | Permalink
That's exactly what Elias is arguing, but the conflict could just as easily be resolved the other way. Unless he has some MN precedent on his side, I don't see the courts overruling the Governor's and SoS' interpretation. But you never know.
January 13, 2009 6:53 PM | Reply | Permalink
Why can it not be argued that the contest has ended?
The mandatory re-count is done and Franken won!
A certificate should be issued. And can be revoked under law.
However, there is no longer an ongoing contest..rather there is a legal CHALLENGE being waged against the outcome of the contest.
January 13, 2009 7:09 PM | Reply | Permalink
Under the statutes, it is clear that this is a contest. The recount is a separate issue. The statutes really are pretty clear, except for this certificate issue.
January 14, 2009 11:13 AM | Reply | Permalink
For those people saying the Franken is stretching the law, seem to be ignoring the standing precedent by Minnesota courts. The Minnesota courts in previous congressional election in fact ruled that the certificate must be given to the winner (even before the election contest has been resolved)
January 13, 2009 6:29 PM | Reply | Permalink
You sure about that? It seems to me that Elias wouldn't have overlooked such a precedent and would have included it in his filing.
January 13, 2009 6:33 PM | Reply | Permalink
The case is Odegard v. Olson, 64 Minn. 439 (1963). Elias cited it throughout his petition.
You can find more information about the case in this post: http://www.talkleft.com/story/2009/1/5/215837/0453
January 13, 2009 7:36 PM | Reply | Permalink
Correction: That should be 264 Minn. 439 (1963).
In Odegard, the loser filed an election contest with Congress and then petitioned the Minnesota courts for an injunction against issuance of the certification. The Minnesota Supreme Court denied the request. Although this is not directly on point, the Minnesota Supreme Court's discussion of the relevant statutes seems pretty compelling in Franken's favor.
January 13, 2009 7:43 PM | Reply | Permalink
Do you have a cite? If so, you should pass it on to the Franken campaign lawyers.
January 13, 2009 7:18 PM | Reply | Permalink
Yes the site is listed in Elias petition. But it was pointed out..in that case the court refused to enjoin the governor/sos from giving out an election certificate while the contest phase was still in progress.
So I suppose one could interpret that precedent as meaning that the Governor/Sos can give out the election certificate while a contest is going on, but are not obligated to give out the election certificate. Though that seems like a strange interpretation to me.
January 13, 2009 8:09 PM | Reply | Permalink
not sure i understand the filibuster.
like burris, if franken shows up with a certificate, don't they have to let him in? does there have to be a motion to allow a senator to take the oath and start voting?
i thought all they could really do is kick him out with a supermajority.
January 13, 2009 6:30 PM | Reply | Permalink
Nope. They vote. Normally, the entire group that has been elected is voted on at one time, but stragglers like Burris and Franken have to be voted on individually. They're really exercising their Art I Sec 5 authority to accept the credentials. It's questionable whether the R's can get all 41 of their Senators to vote against Franken, though.
January 13, 2009 6:38 PM | Reply | Permalink
This is the right move for in law and if I read the competing statutes correctly it holds that when the canvass board finally determines a winner the formality of the Gov and SoS attest to the winner, but that Coleman has a right to contest the outcome in court within seven days. There are always competing issues in law in this case it is what actually constitutes the end of an electoral contest, A) when the final accounting (and recounting) is completed and made or B)when the final measures to appeal the final accounting are exhausted.
The good part is Franken's legal team who have been masterful throughout is now going for the close for if they can force the GOP Governor to sign off the certificate making the GOP look really foolish trying to filibuster seating him.
January 13, 2009 6:57 PM | Reply | Permalink
As I said yesterday, Franken's demand was an "asswipe letter"..
Dear Asswipe, wipe your ass with this...
Nice move Al!!!
January 13, 2009 8:25 PM | Reply | Permalink
Yesterday
January 13, 2009 8:34 PM | Reply | Permalink
Might want to bother looking at the MN law; in particular, Odegard v. Olson, 264 Minn. 439 (1963). I think you'll find that Franken has a fairly strong argument.
January 13, 2009 10:38 PM | Reply | Permalink