Minnesota Supreme Court Hearing: They Can Certify Franken Now…Or Wait Months

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The Minnesota Supreme Court just finished hearing arguments in Al Franken’s lawsuit to obtain an immediate certificate of election, and it has become clear that the court faces a very tough choice: Issue an election certificate now, which would have a theoretical chance of being undone later by pending litigation, and to do so against the commonly-understood meaning of state statutes — or have Minnesota go without two seats in the Senate for months.

The justices grilled everybody involved. Justice Paul Anderson asked lead Franken lawyer Marc Elias whether the certificate is truly necessary, and whether the court has to intervene. “The Senate has plenary authority to seat whoever they want,” Elias replied. “They could declare me the next Senator. But like this court, the Senate has rules.”

Elias’ argument is that the Senate has rules pertaining to certificates of election, as we saw in the Roland Burris case, and that Minnesota is unconstitutionally shirking its obligation to send a certificate in time for the Senate to meet.

Coleman attorney James Langdon complimented conservative Justice Lorie Gildea for questioning Elias on a matter of prior case law — only to get his own tough questions from Gildea, about how the case she pointed to involved another state where the certificate was issued while a dispute was ongoing. Langdon’s response was that Minnesota has chosen to create its own election code in a different way, and has that authority.

“Unlike the situation in Bush v. Gore, there is no federally mandated deadline here,” said Langdon. In short, he said, state law validly requires that the certification process keep on going — and the Senate can seat whoever it wants, anyway.

That case was enhanced later when Gildea asked state Solicitor General Alan Gilbert what the government means when they say a final judicial determination is necessary. Gilbert said that this included all appeals, and not just the initial verdict of the three-judge panel.

When Elias came back for final questioning, he seized on this point in order to express the sheer gravity of the situation. “I was most struck by the argument of the attorney general that not only will we have a multi-month trial,” Elias said, laying out how long such a process would take, “and that the state of Minnesota will simply opt out of the constitutional structure of having two United States Senators.”

“The nation faces issues of war and peace, of economic crisis,” Elias said, detailing how the absence of a Senator is causing serious national harm. “For want of a vote, a stimulus package may be lost.”

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