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MN Supreme Court Denies Franken Request For Certification Of Election

By Big Tent Democrat

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

Full post as published by TalkLeft on March 06, 2009 (boomark / email).