Tags: coleman | franken | fight

Coleman-Franken Fight Not Over Yet

Wednesday, 01 Apr 2009 02:03 PM

By David A. Patten

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Now that Minnesota’s three-judge panel has emerged, groundhog-like, from its chambers to issue a ruling that preserves Al Franken’s nano-sized margin over GOP Sen. Norm Coleman, a Constitutional crisis between Republicans and Senate Democrats may be brewing.

Franken's bid for a U.S. Senate seat received a boost from a court opinion on Tuesday limiting the number of votes still to be counted, but his Republican rival promised to appeal.

Coleman's lawyer, Ben Ginsberg, said the three-judge panel's ruling to count up to 400 previously excluded absentee ballots next week meant it was a "long shot" that Coleman could overtake Franken's 225-vote lead.

For Americans, the stakes are huge. This single Senate seat could conceivably determine the course of major federal legislation over the next four years. If Franken is declared the winner, Democrats will control 59 of the 100 Senate seats - still one shy of the 60 needed to overcome Republican procedural roadblocks.

Coleman’s next move in his electoral end-game is obvious: Once the votes are tallied and barring any last-minute surprise, Coleman will appeal the election panel’s verdict to the Minnesota Supreme Court. That’s the course his attorneys have been signaling for months.

Over the next few weeks, the state Supreme Court will review the appeal, hear arguments, and eventually issue a ruling. And if at that point Franken is still ahead, it will set the stage for a Sumo-sized showdown between Republicans and Democrats. And Minnesota Republican Gov. Tim Pawlenty would likely find himself stuck square in the middle of it.

The critical question is whether Franken would receive an election certificate as soon as the Minnesota Supreme Court has ruled on Coleman’s appeals, or would have to wait for appeals to be heard on the federal level as well.

Sen. John Cornyn, the head of the Republican Senatorial Committee, has warned that any attempt to seat Franken before the federal appeals are heard would result in “World War III.”

Sen. Chuck Schumer, the New York Democrat, argues that Minnesota should receive its second senator as soon as the contest ends on the state level. “Whatever the state Supreme Court decides, as I understand it, the law requires it to be certified,” Schumer recently told Politico.com.

According to many legal experts, the law does require GOP Gov. Tim Pawlenty to certify a winner once the Minnesota Supreme Court hands down its ruling. Other lawyers, however, say certification must wait for all federal appeals to be resolved as well – a process that could easily take months.

But this is a seat that will likely determine many political fortunes. Democrats need an additional vote in the Senate to pass key elements of President Obama’s agenda, including the pro-labor, card check legislation that Senate Majority Leader Harry Reid has already conceded will just have to wait until the political balance shifts even further in Democrats’ favor.

Coleman attorney Ginsberg, an election law expert, says whether a certificate of election could be issued prior to all federal appeals being heard is “an open question.”

Sarah Cherry, an independent expert observing the election contest for Ohio State University’s Moritz College of Law, confirms there is some disagreement among lawyers over when a certificate of election should be issued.

“Some argue that the election certificate cannot be issued until ALL appeals -- state and federal both -- are completed,” Cherry tells Newsmax. “But I and many others think it is likely the law provides for the certificate to be issued when the state court proceedings are completed.”

Cherry adds that Pawlenty’s legal interpretation could be different, however.

This much is clear: Once the three-judge panel and the state Supreme Court have issued their rulings, all eyes will turn to Pawlenty. Fair or not, Pawlenty will likely come under increasing political pressure to issue a certificate of election so that Minnesotans aren’t disenfranchised. Democrats are already complaining that Minnesotans are being robbed of their second vote in the Senate.

The Sleuth, a Washington Post blog, recently asked Pawlenty spokesman Brian McClung what the governor would do once the state Supreme Court hands down a ruling.

McClung’s indeterminate response: "The recent Minnesota Supreme Court decision indicated that an election certificate could be issued once the state courts process is complete. However, if one of the parties appeals to a federal court, a question will arise whether the federal court might stay the issuance of a certificate. We'll see what the courts determine.”

It is unlikely Democrats would just wait graciously while appeals wend their way through the federal courts, regardless of Cornyn’s World War III threats. If Pawlenty doesn’t certify a winner, Democrats could sue to force him to sign off on Franken’s election.

Of course, there’s always a chance that Coleman could win a reversal on appeal. But the conventional thinking is that courts are very reluctant to overturn election outcomes based on what could be portrayed as legal technicalities.

Coleman’s attorneys say they have geared their entire strategy toward winning on appeal. They maintain that due to flawed electoral procedures and rulings in Minnesota, a successful appeal is quite feasible. And what if the Senate received an election certificate and seated a senator from Minnesota, only to have federal courts later toss out the election results? Minnesota and the GOP would then have to “un-certify” a sitting U.S. senator, which would inevitably spawn another political and legal morass.

Whether Franken or Coleman prevails in the days and weeks ahead, this much seems certain: The final chapter in the remarkable 2008 election saga won’t be completed anytime soon.

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