MN-Sen: The Return of Bush v. Gore?
Politico is reporting that Republicans are pushing Norm Coleman to go to the Supreme Court with his Bush v. Gore argument:
Top Republicans are encouraging Coleman to be as litigious as possible and take his fight all the way to the U.S. Supreme Court if he loses this round, believing that an elongated court fight is worth it if they can continue to deny Democrats the 59th Senate seat that Franken would represent. And in pushing a possible Supreme Court conclusion, Republicans are raising case history that makes Democrats shudder: Bush v. Gore.
I shudder at the mention of Bush v. Gore, but not because I fear its impact in this case. I shudder because it was the most blatant example of a lack of judicial honesty that I have seen. More . . .
I do wonder at how the Republicans see this case going to federal court outside of a petition for certiorari from an adverse ruling by the Minnesota Supreme Court. These statements are perplexing:
Senate Minority Leader Mitch McConnell (R-Ky.) on Friday first blessed the idea of encouraging Coleman to take his fight into federal appeals court and potentially all the way up to the Supreme Court. . . . Judiciary Committee member Jeff Sessions (R-Ala.) . . . said he “absolutely” would encourage Coleman to take his fight to federal court if he loses.
(Emphasis supplied.) What's that about? A federal appeals court? Take his fight to federal court? I assume Coleman has raised the issue in the contest of the Minnesota Senate election. If he hasn't, its not clear to me he gets another bite at the apple by filing a federal action. The Minnesota election contest law states that:
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.
I suppose Coleman might argue that the Bush v. Gore equal protection question was not within the subject matter jurisdiction of the election contest court. Hard to see how that argument wins though, especially since I assume he raised and argued the point before the ECC and will do so if he appeals to the Minnesota Supreme Court. It seems to me that a cert petition to the Supreme Court of the United States would be the only way to get the issue heard before a federal court now.
I am also perplexed by this statement from the Politico article:
The actual ruling in the Coleman-Franken case may not be straightforward in declaring a winner. Following a seven-week trial, the judges are expected to issue a series of rulings based on arguments advanced by both sides. Either side could appeal to the three-judge panel or petition the state Supreme Court within 10 days of the ruling. And they also can choose to mount a battle in federal appeals court or eventually the U.S. Supreme Court.
(Emphasis supplied.) Why would the ECC issue a "series of rulings" as opposed to one opinion with findings of fact and law that decides the issues in the case? And of course, the idea of going to a federal appeals court is simply wrong. Even if Coleman could get a fresh start in federal court, I assume it would start in the district court.
I believe the real question is will the GOP caucus in the Senate attempt to impede the seating of Franken if the Supreme Court of Minnesota declares him the winner. Assuming Coleman files a cert petition, will the GOP argue the contest has not been finally decided at that point seems to be the real question here, not whether Coleman will file a cert petititon.
Another question is what will Minnesota Governor Tim Pawlenty do at that point -- will he block a certification? I think Senate Democrats are prepared to try and seat Franken after the Minnesota Supreme Court rules. Will the Senate Republicans try and stop it?
Speaking for me only
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