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Get the Al Franken Show on the road

The U.S. Senate should provisionally seat the former performer if the Minnesota Supreme Court rejects rival Norm Coleman's challenge to the narrow 2008 election results.

June 01, 2009|Richard L. Hasen | Richard L. Hasen is a professor specializing in election law at Loyola Law School.

The Minnesota Supreme Court will hear arguments today in Coleman vs. Franken, Norm Coleman's challenge to the 2008 U.S. Senate election in Minnesota. If, as expected, the court rejects Coleman's challenge and confirms Al Franken as the winner, the U.S. Senate should be ready to seat Franken provisionally, even if Coleman vows further legal action and even if the state's governor refuses to sign Franken's election certificate.

The Senate race in Minnesota was exceedingly close, and Franken was exceedingly lucky. When Coleman was initially ahead the day after the election by 206 votes, he called on Franken to concede. Franken refused, pointing to an automatic recount triggered under state law by the razor-thin outcome. After a lengthy recount of ballots, including a detailed examination of disputed ballots by a canvassing commission, Franken was declared the winner by 225 votes.

At that point, Coleman refused to concede, contesting the election in a trial court made up of judges appointed by a Democrat, a Republican and an independent. The court, after considering 142 witnesses, 1,717 exhibits and 19,181 pages of filings, declared Franken ahead by 312 votes. It unanimously rejected Coleman's case.

Coleman's appeal now sits before the Minnesota Supreme Court. Although he has raised some state law issues, his main arguments are federal constitutional ones. He argues that the state violated his equal-protection rights when some counties allegedly used lax standards compared with others in deciding which absentee ballots to count. He also argues that the trial court violated his due process rights by allegedly changing the standards for deciding which absentee ballots to count once the election contest began.

To correct these problems, Coleman is asking for the Minnesota high court to send the case back to the trial court for a ruling to allow another few thousand absentee ballots to be counted under the alleged lax standards.

Coleman's constitutional arguments are getting a fair hearing before the Minnesota Supreme Court. State courts are fully empowered -- and constitutionally obligated -- to consider a litigant's federal constitutional claims. Three of the five justices hearing the case have Republican Party backgrounds, and one was appointed by independent Gov. Jesse Ventura. This is not a court stacked with partisans against Coleman.

If Coleman loses before the Minnesota Supreme Court, he might choose to give up. But some Republican senators are encouraging him to fight on in the federal courts, and encouraging Minnesota Gov. Tim Pawlenty not to sign a certificate of election for Franken.

If Coleman continues the fight by filing a new federal lawsuit, the U.S. Senate should not wait for the outcome before seating Franken provisionally. There's no argument that Coleman could make in a new federal lawsuit that he can't make in the current litigation. The only reason for a new federal lawsuit would be to delay the Democrats' ability to obtain a 60th vote -- a potentially filibuster-proof majority in the Senate. Even if Pawlenty chooses not to sign the certificate of election, the Senate, as the constitutionally authorized arbiter of disputed Senate elections, should declare Franken the provisional winner.

A more immediate question if Coleman loses in the Minnesota court is whether the Senate should await the outcome of any direct appeal of the ruling to the U.S. Supreme Court before seating Franken.

Coleman ordinarily would have 90 days after the Minnesota judgment to file his petition in the U.S. Supreme Court, and the high court would not be expected to rule on whether or not to hear Coleman's appeal before the beginning of its next term in October, at the earliest. But Coleman can ask to expedite the process. And the Senate should give Coleman only a short window of time to seek an immediate stay of the Minnesota court ruling from the U.S. Supreme Court. If Coleman does not quickly seek a stay, or if he files for it and the high court denies the stay, the Senate should provisionally seat Franken.

The U.S. Supreme Court would issue a stay only if it thinks there's a good chance Coleman would win his appeal and that the Senate seating of Franken would irreparably harm Coleman. That's what happened in 2000 when George W. Bush sought a stay to prevent the Florida Supreme Court-ordered recounting of votes in Florida. If the court declines to issue Coleman a stay, it would be time for the Senate to give Franken the seat pending further court developments.

With Coleman facing such long odds at that point, there would be no reason to deny the people of Minnesota half of their Senate representation for another three or more months.

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