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Does Franken Finally Win? A Legal Analysis

Everyone agrees it was a major story today for the Minnesota State Canvassing Board to declare Al Franken the official winner of the recount -- but is it the end of the story?  We all know Norm Coleman can file a lawsuit to contest the results further, but will that really delay Franken's entry into the Senate?


Some blogs have suggested that Minnesota law is kind of unique in that the winner of an election doesn't get officially certified as long as there's a dispute pending in court, and John Cornyn has vowed to filibuster Franken if the Democrats try to seat him before he's officially certified.  So can Franken get certified by the state now, or does he have to keep waiting?

As specialized as the Internet is, I'm frankly surprised that there's not some source like the "Minnesota Election Law Blog" that answers all these arcane questions in the most minute detail -- and maybe there is, and I'll be hearing about it soon.  But absent some authoritative source, I thought I'd try to research the question myself.

The key Minnesota statute provides as follows:


204C.40 CERTIFICATES OF ELECTION


Subdivision 1. Preparation; method of delivery.


The county auditor shall prepare an election certificate for every county candidate declared elected by the county canvassing board, and the secretary of state shall prepare a certificate for every state and federal candidate declared elected by either a county canvassing board or the State Canvassing Board. Except as otherwise provided in this section, the secretary of state or county auditor, as appropriate, shall deliver an election certificate on demand to the elected candidate. In an election for United States representative, the secretary of state shall deliver the original election certificate to the chief clerk of the United States House of Representatives. In an election for United States senator, the governor shall prepare an original certificate of election, countersigned by the secretary of state, and deliver it to the secretary of the United States Senate. In an election for state representative or state senator, the secretary of state shall deliver the original election certificate to the chief clerk of the house or the secretary of the senate. The chief clerk of the house or the secretary of the senate shall give a copy of the certificate to the representative-elect or senator-elect. Upon taking the oath of office, the representative or senator shall receive the original certificate of election. If a recount is undertaken by a canvassing board pursuant to section 204C.35, no certificate of election shall be prepared or delivered until after the recount is completed. In case of a contest, the court may invalidate and revoke the certificate as provided in chapter 209.


Subd. 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.


I've highlighted the key provisions.  Section 1 appears to state that once the Canvassing Board has rendered its final decision, the Secretary of State and the Governor are required to sign off on a certificate of election.  It's what we call a "ministerial act," meaning those officials have no discretion to say no.  It goes on to say that the certificate shall not be issued until the recount is completed - which it has been, in our case - but it declines to go further and say that, if a contest is filed, the certificate still has to wait.  Instead, it provides that if the contest ends up changing the outcome of the election, the court is empowered to revoke the certificate that was already issued.  So this section says pretty clearly that based on the Canvassing Board's ruling today, Franken gets his certificate.


But wait, then there's section 2!  Section 2 says that there's no certificate until the court renders a final ruling on the contest - which would include any and all appeals.  So I guess Franken has to wait after all.


The law is seldom that clear, though, which is why lawyers get paid big bucks to tell you what it says.  Here, we have to go beyond the statute to review the seminal case of Odegard v. Olson, 264 Minn. 439 (1963).  That's a very Minnesotan name for a case, by the way.


The Odegard case involved a disputed Congressional election from 1962, in which the DFL candidate had won by a whopping 348 votes.  Although the canvassing board had declared the DFLer the winner, the Republican filed an election contest with Congress (a different procedure from what we have today), and went to court seeking to enjoin the Secretary of State from issuing an election certificate to the DFLer pending the outcome of the election contest.  The Minnesota Supreme Court had this to say:


After carefully examining these statutory provisions, we must come to the conclusion that § 204.32, subd. 2, has no application to a contest in the United States Senate or House of Representatives. Our courts are divested of jurisdiction by U.S. Const. art. I, § 5, which provides: "Each house shall be the judge of the election returns and qualifications of its own members, * * *." The determinative fact in the mechanics of this particular election is the act of the state canvassing board in declaring the election of the respondent pursuant to  [*443]  authority of that board under Minn. St. 204.31, subds. 3 and 4. The certificate of election as provided by § 204.32 has no greater significance than a publication by the secretary of state of the official action taken by the canvassing board. The effect of any order of this court enjoining the secretary of state from performing the ministerial function of furnishing respondent a certificate of election would be gratuitous and of no force as bearing upon the merits of the election contest pending in the House of Representatives. It would, as expressed in State ex rel. 25 Voters v. Selvig, 170 Minn. 406, 408, 212 N.W. 604, be "officious and nugatory." The contest is pending in a forum, the jurisdiction of which this court is bound to respect. The House of Representatives may seat members elected without a certificate, just as it might refuse to seat members who have a certificate, if it chooses to do so. Since the House of Representatives is the final and exclusive judge of the legality of election or qualification of its members, this court should not gratuitously issue a prerogative writ which might be considered a tactical advantage for one or the other candidate.


In plain language, the court is saying that since Congress is the final judge of the returns, according to the Constitution, the election certificate has no real significance since Congress would be free to accept or disregard it anyway.  Accordingly, the only effect of an injunction would be to give the losing candidate a political advantage (in the present context, this equates to "giving John Cornyn an excuse to filibuster"), and the court held that to be an insufficient basis for granting an injunction.


So this case strongly suggests that Franken will get his election certificate after all.


Of course, none of this prevents Coleman from filing an election contest in court if he wants to.  (In fact, in the time it took me to write this diary, that contest may have already been filed and decided.)  The statute relating to Senate election contests seems to confirm what we've already concluded about how the process works:


209.12 CONGRESSIONAL OFFICE


When a contest relates to the office of senator or a member of the house of representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election. The judge trying the proceedings shall make findings of fact and conclusions of law upon that question. Evidence on any other points specified in the notice of contest, including but not limited to the question of the right of any person to nomination or office on the ground of deliberate, serious, and material violation of the provisions of the Minnesota Election Law, must be taken and preserved by the judge trying the contest, or by some person appointed by the judge for that purpose; but the judge shall make no findings or conclusion on those points.


After the time for appeal has expired, or in case of an appeal, after the final judicial determination of the contest, upon application of either party to the contest, the court administrator of the district court shall promptly certify and forward the files and records of the proceedings, with all the evidence taken, to the presiding officer of the Senate or the House of Representatives of the United States. The court administrator shall endorse on the transmittal envelope or container the name of the case and the name of the party in whose behalf the proceedings were held, and shall sign the endorsement.


So then, this statute recognizes the House and Senate as the final judge of any contested election.  The court reviews all the evidence and makes a ruling as to which candidate received more votes, and then forwards that ruling - together with all the evidence - to the appropriate House of Congress to handle as it pleases.  This means that the Senate effectively has the power to act as a Court of Super-Appeals and, in theory, decide the election differently if it believes the court got it wrong.


What all this means is that Franken was probably correct to declare victory today, in the sense that he will get seated in the Senate, although Coleman of course still gets his long-shot court challenge if he wants to file it.  I personally doubt the Republicans will hold together their entire caucus to filibuster Franken if he holds an actual certificate of election in his hand, and he's legally entitled to that certificate right now.


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  • Display: Sort:
    Interesting (5.00 / 1) (#1)
    by andgarden on Mon Jan 05, 2009 at 09:14:40 PM EST
    Thanks.

    Thanks, Steve M (none / 0) (#2)
    by caseyOR on Mon Jan 05, 2009 at 09:39:29 PM EST
    I think I might actually understand this process now. Good job.

    Does this provision say (none / 0) (#3)
    by BackFromOhio on Mon Jan 05, 2009 at 11:43:03 PM EST
    no certificate until 7 days after recount. Then, if there's an election contest pending before certificate issues, it cannot be issued, but if certificate shall have been issued before contest filed, the certicate MAY be withdrawn?

    According to the Odegard case (none / 0) (#4)
    by Steve M on Mon Jan 05, 2009 at 11:47:23 PM EST
    supposedly none of that applies to Senate elections at all.

    In an election for, let's say, dogcatcher, you're right that the certificate could not be issued at all until after the contest proceeding has concluded in the courts.

    Parent

    As a non-lawyer. . . (none / 0) (#5)
    by LarryInNYC on Tue Jan 06, 2009 at 08:51:15 AM EST
    I have to say that the Odegard decision seems completely ridiculous to me.  I don't see why the Senate's ability to decide on qualifications would supersede Minnesota's election and certification laws -- in fact I imagine that the outcome of the local process would serve to inform the Senate's decision in case of any conflict.

    And where does Odin fit into the mix, anyway?

    Parent

    He's the King of the Norse Gods (none / 0) (#8)
    by Big Tent Democrat on Tue Jan 06, 2009 at 10:31:45 AM EST
    I agree and disagree (none / 0) (#11)
    by Steve M on Tue Jan 06, 2009 at 10:39:11 AM EST
    What the court is saying is that an injunction is an extraordinary form of relief, and when the thing they're being asked to enjoin is merely symbolic, they're not going to interfere just to give one side or the other a political talking point.

    Of course, even though the election certificate doesn't necessarily have any legal significance - because the Senate is the final judge of who won the election - in the real world it has a great deal of significance, because the Senate has decided to give the certificate great weight in the process.  So this is where I agree with you that it's somewhat nonsensical.  It's like Minnesota is insisting on deferring to the Senate, and at the same time the Senate is insisting on deferring to Minnesota.  "No, no, after YOU, good sir!"

    Be that as it may, it seems like the case is still good law, and I suspect the Minnesota courts would continue to follow it if Coleman tried to stop the certificate from being issued.  I guess time will tell if my analysis has any validity.

    Parent

    I think Franken will have to sue (none / 0) (#12)
    by Big Tent Democrat on Tue Jan 06, 2009 at 10:55:45 AM EST
    to get the certificate. I doubt he will.

    Parent
    What Odegard is really about (none / 0) (#19)
    by FischFry on Wed Jan 07, 2009 at 11:38:16 PM EST
    I've covered this another comment, but it bears repeating. You're giving the Odegard case significance and meaning it does not have. Odegard stands for the principle that state courts were barred from any role in "Judging" congressional elections -- that this power was reserved exclusively for the Congress. That is a principle that was rejected by SCOTUS in a 1970 case.

    Even at the time, Odegard was questionable. The concurring judges in Odegard rejected the majority opinion's proposition that the Constitution prohibited state courts from a post-election role. They concurred only because there was no basis for an injunction as there was no statutory ground for the court to hear the contest. They didn't believe that the Constitution forbade a court from hearing an election contest, if there was an applicable statute. They just thought that the contest statute didn't apply to this case.

    In Hartke v. Rodebush, SCOTUS overruled a long line of state cases that held state courts had no constitutional role in post election challenges. A few courts in the 70s thought that only applied to ordering recounts. They thought they were forbidden from hearing federal election contests. No one really believes that any more, and a number of courts have entertained such contests, including Florida in '06, when Christine Jennings contested those thousands of undervotes that were probably machine error.

    Minnesota now has a contest statute that applies specifically to federal elections. It limits the grounds to which candidate got the most lawfully cast votes. As you have discussed, the scheme does have that ambiguity about whether an election certificate would/could issue. Odegard doesn't settle it. It spoke to a theory that has long since been discredited. It hasn't been overruled, but it would be, if Franken challenged the constitutionality of the contest.

    Parent

    You're right (none / 0) (#20)
    by FischFry on Wed Jan 07, 2009 at 11:46:54 PM EST
    Odegard decision is ridiculous. It would not be decided that way today. There was a split in the states on this, but SCOTUS pretty much settled the matter in 1970 Hartke v. Rodebush. The lower court held it was unconstitutional for a state court to order a recount. SCOTUS reversed, saying ti didn't trample the Senate's power to be the final judge. A few later courts though it was OK to order a recount, but not OK to administer one, or hear an contest, because that would be judging an election -- reserved to Congress. No court has held that for 30 years, and they have heard contests as recently as 2 years ago in the Jennings/Buchanan race.

    Parent
    Great analysis (none / 0) (#6)
    by Lena on Tue Jan 06, 2009 at 10:15:26 AM EST
    I wonder how the Odegard case will stand up as a precedent?

    It's a dead precedent (none / 0) (#18)
    by FischFry on Wed Jan 07, 2009 at 11:28:56 PM EST
    Odegard stands for a principle that was rejected by SCOTUS in a 1970 case. A few state cases in the 70s declined to see the SCOTUS case that way, but their approach has been disregarded. What Odegard was really saying was that it was unconstitutional for state courts to decide House or Senate races. They couldn't "judge" the election. That was a power reserved to each House of Congress. The concurring judges in Odegard disagreed with that proposition, even though they agreed there was no basis for an injunction because there was no statutory ground for the court to hear the contest. They didn't believe that the Constitution forbade a court from hearing an election contest, if there was an applicable statute. They just thought that the contest statute didn't apply to this case.

    In Hartke v. Rodebush, SCOTUS overruled a long line of state cases that held state courts had no constitutional role in post election challenges. A few courts in the 70s thought that only applied to ordering recounts. They thought they were forbidden from hearing federal election contests. No one really believes that any more, and a number of courts have entertained such contests, including Florida in '06, when Christine Jennings contested those thousands of undervotes that were probably machine error.

    Minnesota now has a contest statute that applies specifically to federal elections. It limits the grounds to which candidate got the most lawfully cast votes. The scheme does have that ambiguity about whether an election certificate would/could issue. Odegard doesn't settle it. It spoke to a theory that has long since been discredited.

    Parent

    Steve (none / 0) (#7)
    by DFLer on Tue Jan 06, 2009 at 10:17:32 AM EST
    from this morning's Strib:

    ...Coleman attorney Fritz Knaak said their case will pivot in part on constitutional issues, such as the equal protection clause, that typically are decided by the U.S. Supreme Court.

    What do you make of that? (specifically the equal protection clause business)

    Well (none / 0) (#9)
    by Steve M on Tue Jan 06, 2009 at 10:34:56 AM EST
    I assume he means a Bush v. Gore type argument.  Obviously it's a stretch to say the Supreme Court "typically" decides such cases.  In fact, if you want to argue that it's a Constitutional violation for different counties to use different standards in a recount, I'm pretty sure Bush v. Gore is the one and only case you can cite.

    My personal view is that there's an important difference between a Presidential election and a Senate election, in that the Constitution specifically provides that each house of Congress is the final judge of its own elections.  There's no such provision for Presidential elections, which theoretically leaves the door open for courts to step in.  But in the case of a Senate election, I think the federal courts might very well say "even if you have a valid equal protection claim, you have to take it up with the Senate, not with us."

    Parent

    But the same standard was used (none / 0) (#10)
    by Big Tent Democrat on Tue Jan 06, 2009 at 10:38:22 AM EST
    in every county in the state as far as I know.

    But it will be fun to see them try and develop the argument.

    Parent

    Exactly (none / 0) (#17)
    by eric on Wed Jan 07, 2009 at 12:15:08 PM EST
    there was even an official recount manual that was published.  The simple truth is that the same standard was clearly articulated to all.

    Link to the Recount Guide.

    Parent

    This is not Rocket Science.... (none / 0) (#13)
    by cwolf on Tue Jan 06, 2009 at 12:42:55 PM EST
    After defining the affected party (class) as "...(contestants for)... the United States Senate or House of Representatives", The court went on to say:

    "The determinative fact in the mechanics of this particular election is the act of the state canvassing board in declaring the election of the respondent pursuant to (law)."

    Even Pawlenty ought to be able to understand that.

    Heads up (none / 0) (#14)
    by DFLer on Tue Jan 06, 2009 at 01:49:07 PM EST
    Republican Norm Coleman will speak to the media at 3 p.m. today in St. Paul.

    That's 4PM EST, no? (none / 0) (#15)
    by andgarden on Tue Jan 06, 2009 at 02:02:16 PM EST
    yes...that's 3:00 is a central time designation (none / 0) (#16)
    by DFLer on Tue Jan 06, 2009 at 02:18:36 PM EST
    I've given this some thought (none / 0) (#21)
    by FischFry on Thu Jan 08, 2009 at 12:10:25 AM EST
    Here's my current understanding (subject to revision) of this provision. If there is a recount, no certificate can even be prepared until it's completed. Prepared and delivered is not the same as issued. What the State Bd did was prepare and deliver the certificate. It has not been issued, because it has not been signed by the Governor and SoS.

    If the contest court rules against Franken, the court would then "invalidate and revoke" that certificate. Essentially this would prevent the then invalid certificate from ever being issued. Thus, the Bd. would have to prepare and deliver a new certificate, which could then be formally issued.

    You've made a mountain out of a molehill here. There's no "there" there. Lawyers, as you say, are paid the big bucks for a reason. We pay close attention to the language of a statute -- at least, we should. It took me a couple of reading before I read it closely enough to see the source of your confusion.

    The other mistake you've made is to take a 45 yr. old case and not research to see if it stands for a proposition that is still valid today. Odegard does not. The majority refused to issue the injunction because they thought there was no valid constitutional basis for "judging" a congressional election. They feared the injunction would give some tactical advantage with respect to proceedings in the House, but there was no state forum to hear the contest. They thought it would be unconstitutional.

    No one buys that argument any more. There's a student note in a recent NYU Law Review arguing that Congress should have the exclusive power to decide election contests, but no real authority would buy that. Certainly, no state court would rule a state contest law unconstitutional on that ground.

    Very interesting (none / 0) (#22)
    by andgarden on Thu Jan 08, 2009 at 12:19:21 AM EST
    Neither Westlaw nor Lexis give any obvious warning that Odegard is stale. I guess that's a good reminder that you need to talk to someone who knows the area of law in question before you go out on a limb.

    Parent
    Or cite check. (none / 0) (#23)
    by oculus on Thu Jan 08, 2009 at 01:14:16 AM EST
    I just followed the links (none / 0) (#24)
    by FischFry on Thu Jan 08, 2009 at 01:25:39 AM EST
    I didn't know the answer until I read the opinion, and then followed the trail of citing cases. Shephardizing isn't enough, in this case. While the lower court in Roudebush cited Odegard favorably, SCOTUS didn't cite to it. The case was cited in the few later opinions that didn't think Roudebush allows for state election contests in congressional races -- but they don't give any cause for thinking that Odegard isn't good law. You have to follow the other cases from Roudebush, that reflect the current understanding -- and they don't even mention Odegard. So, it slips through the Shephard's filter.

    Parent
    Let me ask you this (none / 0) (#25)
    by Steve M on Thu Jan 08, 2009 at 05:04:38 PM EST
    regardless of how the contest proceeding turns out in state court, does the Senate have the power - at least in theory - to seat whichever one of the candidates it wants?

    Parent
    As a legal matter -- I think it depends (none / 0) (#26)
    by FischFry on Thu Jan 08, 2009 at 08:53:14 PM EST
    The Constitution gives them the "final say". The Senate is the "Judge".

    However, I'm fairly certain that, if this were tested, courts would read the Powell decision to somewhat restrict the Senate. Technically it would not be a qualifications issue -- but, even still, they can't just make it up, to seat whomever they want. I think there would have to be some process to determine the winner. I suppose there could be some Due Process or Equal Protection issues. if the violated Constitutional rights by casting out some votes, or counting others, to reach their decision. Of course, they don't necessarily have to pick the one with the most votes. The Senate could find fraud in the vote. I suppose they could even declare a tie, and just vote on who should be Senator. But, again, I don't think they can just make that up. Besides, that presents a legal question, since Minnesota prescribes a coin-flip for breaking ties.

    My short answer is "Yes' Senate could make its own call, and disregard the contest results -- but, they can't do that just on a partisan basis. They have to find reasons in fact why A won the election, even though B won the contest.

    Parent

    I agree with you (none / 0) (#27)
    by Steve M on Thu Jan 08, 2009 at 09:56:48 PM EST
    There's really no such thing as an unlimited, unreviewable power... until someone actually tries to take that power to its limit and the courts refuse to intervene.  That will probably never happen.

    Thanks for all your input on this diary, by the way.

    Parent

    Coleman Grasps At Straw With Reply Brief To MSC (none / 0) (#28)
    by RickCoMatic on Wed May 20, 2009 at 09:10:24 PM EST
    Former U.S. Senator Norm Coleman's reply Brief to the Minnesota Supreme Court demands that the Supreme Court side with Coleman and disregard a couple of hundred years of Minnesota Election Law. Coleman says send the Case back down to the Election Contest Court and have them apply an entirely new Standard of "Leniency" for accepting Absentee Ballots which have been rightfully rejected by Minnesota Election Judges several times. Using Coleman's latest demands which include "Last ditch", dreamed-up rules, and his exclusive, new and improved Standards for determining an Absentee Ballots worthiness, the Lower Court will be instructed to put-aside their Oaths to impart making decisions based upon Law, and to acquiesce to the will of the New Standard's author and allow more than four thousand previously multi-rejected Absentee Ballots to be open and counted provided they are a vote for Norm Coleman. However, any previously multi-rejected Absentee Ballot rendered acceptable, under the New NormColified lenient Standard, opened and found to be a ballot for anyone NOT Norm Coleman will be Un-re-un-re-re-re-rejected. Meaning, the Ballot previously rejected and rejected once again only to be rejected a third time before being allowed to be opened and reviewed by The Coleman Standard and found to be a ballot for a candidate other than Norm Coleman will once-again be rejected as it was before the New Standard allowed it to be accepted momentarily. But, not ever again, finally!
    In this way, no voter will be Un-Due Processed and won't be Dis-disenfranchised.

    The Three Lower Court Judges will also all be given "Nicknames". The First Judge will be called "Who." The Second Judge will be: "What". And the Third Judge: "Eye-dunoo".
    Which Judge will be the first Judge to throw this whole concept right out the window?
    "I don't know!"
    (Clap)
    "Third Judge!"

    maybe wins (none / 0) (#29)
    by inzone on Sat Sep 12, 2009 at 09:01:15 PM EST
    Just like in the internet story "Battle of Jakes" Franken wins....