MN Supreme Court Denies Franken Request For Certification Of Election

The Supreme Court of Minnesota denied Al Franken's petition (PDF) that the Governor and Secretary of State be ordered to issue a certificate of election. The key to the decision is this passage, imo: [More...]

Franken’s contention that no court can finally determine a contest for the Senate is based on the broad authority of the Senate, under U.S. Const., art. I, § 5, to make the final determination about the election of United States Senators . . . Franken’s implication apparently is that because the court does not decide those other issues, it cannot “finally determine” the election contest. Further, because the ultimate determination of all the issues presented in the contest is within the constitutional authority of the Senate to decide, Franken concludes no court can make a final determination of the contest.

. . . We conclude for several reasons that in the contest tolling provision the legislature used “contest” in the more narrow sense of a chapter 209 proceeding [not the Senate Article 1, Section 5 power.

This strikes me as the correct decision. The decision also tangentially deals with an issue I spent a lot of time on - whether the Senate had the power not to seat Roland Burris:

Franken argues that refusal to issue a certificate of election impermissibly infringes on the Senate’s authority under Article I, Section 5, to “be the Judge of the Elections, Returns and Qualifications of its own Members.” Franken acknowledges, as do all participants in this matter, that the authority of the Senate under Article I, Section 5, is plenary, and the Senate is therefore free to seat Franken without a certificate of election if it so chooses, either provisionally or not. Cf. Odegard, 264 Minn. at 443, 119 N.W.2d at 720 (“The House of Representatives may seat members elected without a certificate . . . .”). Accordingly, the precise nature of the infringement of Senate authority that Franken asserts is unclear.

I think the court overstates when it asserts that the Senate's power is "plenary" (which means "complete in every respect") over Senate elections and returns, it is subject to some constitutional restraint, at least in theory. but it certain is the sole judge of its elections and returns.

It is clear that the Senate does have the power to seat Franken (or Coleman for that matter), but that power is subject to other constitutional provisions - in this case, Article 1, Section 4.

It so happens that in the Burris case, the check on the power of the Senate to judge Senate elections and returns was in the 17th Amendment, which provided for direct election of Senators and, for state legislatures to empower Governor to make temporary appointments.

Of course, the Senate has every right, indeed a duty, to judge the appointment by a Governor of a Senate vacancy. And in the case of Blagojevich, I think it had an especially strong right and duty to review the appointment process at the least (my own view is that ANY appointment by Blagojevich should have been rejected out of hand, because he stood accused of trying to sell the vacancy.)

But back to the story here, Franken will be seated as the Senator of Minnesota, but after he wins the contest. I predict that when the Minnesota Supreme Court rejects Norm Coleman's appeal of the contest, it will be Al Franken's lawyers, not Norm Coleman's, who will be praising the wisdom of the Minnesota Supreme Court. today it was Coleman's team:

Coleman's team hailed the ruling for giving the state courts space to sort out Coleman's lawsuit. "This wise ruling will ensure that Harry Reid, Al Franken and Chuck Schumer cannot short-circuit Minnesota law in their partisan power play," Coleman adviser Ben Ginsberg said, referring to two Democratic leaders in the Senate.

Hold your praise there Ben. You'll be ripping them soon I predict.

Speaking for me only

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    This is interesting (5.00 / 2) (#3)
    by Steve M on Fri Mar 06, 2009 at 06:28:05 PM EST
    The court rejected my argument which is still sitting on the Recommended Diaries list on this site.  I tried to write that diary in a spirit of humility regarding the law of a state where I am not admitted to practice, and I'm certainly not going to argue that the Minnesota Supreme Court was wrong about Minnesota law and I was right.

    But I can't feel too bad about the basis on which the court brushed aside the key bit of caselaw on which I relied:

    This argument overlooks the fact that Odegard was decided by only six members of a seven-member court, and only three of the six justices joined in the statements about the jurisdictional limitations of the Minnesota courts on which Franken relies as the court's "constitutional" ruling.

    Ok, fair enough!  But come on, what do you want from me, in a couple idle hours spent with Lexis/Nexis :)

    Perhaps you should have filed (none / 0) (#10)
    by oculus on Sat Mar 07, 2009 at 01:03:38 AM EST
    an amicus brief.  And asked:  why publish a 3-3 opinion?  What a waste of trees.

    What Does (5.00 / 1) (#5)
    by cal1942 on Fri Mar 06, 2009 at 07:29:54 PM EST
    Minnesota public opinion say about the recount and the Coleman campaign's challenge to the outcome of the election in court?

    Two questions actually.

    The question is: when? (5.00 / 3) (#6)
    by andgarden on Fri Mar 06, 2009 at 07:47:33 PM EST
    I'm having a feeling that it could be next Congress before this case plays out. I was hoping that Franken would be seated by June.

    That's what I'm thinking, (none / 0) (#9)
    by BrassTacks on Fri Mar 06, 2009 at 11:54:29 PM EST
    This will never end!  

    i feel pretty confident franken (5.00 / 3) (#8)
    by cpinva on Fri Mar 06, 2009 at 10:00:34 PM EST
    will be affirmed as the next sen. from MN. that won't stop the right-wingnuts from claiming he "stole" the election, though they'll never say how exactly he did it.

    bear in mind, these are same folks who've killed off the entire population of arkansas (and washingon DC), in their claims about the serial murdering clintons.

    their brains are blissfully uncluttered by actual facts.

    I'm sure GOP obstructionism will play well ... (none / 0) (#12)
    by ryanwc on Sat Mar 07, 2009 at 10:36:14 PM EST
    They tried this strategy in Washington with Christine Gregoire, and four years later, she won by 6%.  

    Question (none / 0) (#1)
    by jbindc on Fri Mar 06, 2009 at 06:05:45 PM EST
    Of course, the Senate has every right, indeed a duty, to judge the appointment by a Governor of a Senate vacancy.

    I see the argument in the case of Blago or another corrupt governor.  But what about in other cases?  What is the check on the Senate? What if, in the future, a state elects a person, say, of the Communist Party - can the Senate refuse to seat that person because they don't lie their political belief?  What if the people of a state elect a convicted felon?  Can the Senate refuse to seat them as well?

    Ok (none / 0) (#2)
    by jbindc on Fri Mar 06, 2009 at 06:07:05 PM EST
    I also understand we're talking appointments vs. elections.  But it's the same thing, isn't it?  If the Senate is truly in charge of who gets seated, does it matter if the unappealing person is appointed or elected?  Can the Senate refuse to seat them?

    Two separate questions get confused (none / 0) (#4)
    by ricosuave on Fri Mar 06, 2009 at 06:35:09 PM EST
    Don't confuse what the senate may have the power to do with what the senate ought to do.  It may be that the senate does have the right to keep a communist (or woman or Jew or Muslim or gay person or felon or Gringo) out of it ranks. It is an altogether different question to ask what the Senate ought to do.  But that is true about a lot of things, not just who they sit with.

    Honestly... (none / 0) (#7)
    by atdleft on Fri Mar 06, 2009 at 09:52:43 PM EST
    I'm a little conflicted here. On one hand, I'm so frustrated that the GOP is trying to run out the clock as long as they can simply to prevent Franken from being our 59th Senate vote. But OTOH, I can see the need to let the process go on and let all the votes be counted. After all, aren't we usually the ones calling for all the votes to be counted?

    I'm sure Franken will emerge victorious. I guess we just have to wait for the process to complete to see him take his Senate seat.

    I just don't understand why (none / 0) (#13)
    by ryanwc on Sat Mar 07, 2009 at 10:38:17 PM EST
    it has taken this long.

    I haven't followed closely, but it seems like the Supreme Court is reexamining some of the evidence.  Don't appellate courts normally restrict themselves primarily to issues of law, not fact?  Is that true of most cases, but not of election cases in Minnesota, because of distinct provisions of the law?


    It's going to be a mess either way (none / 0) (#11)
    by jbindc on Sat Mar 07, 2009 at 09:25:23 AM EST
    From what I understand, the people of Minnesota are sick of both of these candidates and whoever wins will be dogged because half the state will think their guy got robbed.