The Minnesota Supreme Court just handed down their opinion on Al Franken’s lawsuit to force the state to issue him a certificate of election — and it’s a unanimous No:
It is our legislature that is charged by both the federal and state constitutions with the authority and responsibility to fashion the processes for the election of United States Senators from Minnesota. The legislature has done so and has clearly chosen not to authorize issuance of a certificate of election until an election contest is completed. Franken has failed to establish that either the United States Constitution or federal statutes mandate the issuance of a certificate of election immediately. In the absence of such a mandate, overturning a legislative choice in order to maintain comity with a federal scheme is not within our judicial powers.
The remaining question, then, is when does somebody get a certificate? When does a “court of proper jurisdiction,” as the law terms it, decide the case? The court cites prior case law declaring “the term ‘proper court’ in the same section applies to the state court which is given jurisdiction.” This appears to suggest that a certificate could be issued after this goes through state court — and not an onerous federal appeals process as the state’s solicitor general said during oral arguments in this case.
However, the possibility would still exist of federal appeals placing an injunction against issuing a certificate — so who knows.
This line has to be the cruelest cut for Franken. The opinion also says that Franken is not being hurt by the lack of a certificate — the Senate can seat him if it wants:
In other words, if the Senate believes delay in seating the second Senator from Minnesota adversely affects the Senate, it has the authority to remedy the situation and needs no certificate of election from the Governor to do so. We cannot conclude, therefore, that the Minnesota Legislature’s choice to defer issuance of a certificate of election until the full state election process has run its course unconstitutionally usurps the Senate’s authority.
Of course, Senate Republicans are saying they’ll block any attempt to suspend the rules and seat Franken without a certificate, even if theoretically the Senate has the power to do so. Remember all that fuss the Democratic leadership made over Roland Burris, demanding that everything be checked out on his credentials? Oy.