To Seat, or Not to Seat

Efforts to seat Senator-elect Al Franken provisionally are not being brought on two fronts. Today the Supreme court will have a hearing on a motion to issue a provisional Certificate of Election.

As both sides hurled taunts and accusations Wednesday, lawyers for DFLer Al Franken and Republican Norm Coleman braced for a showdown today in the state's highest court on whether Franken should be seated in the Senate while their courtroom election fight continues.

Franken attorney Marc Elias called the recount trial -- Coleman's legal challenge of Franken's 225-vote lead in the certified recount results -- "a shrinking case" and said the law demands that the Democrat be seated in the meantime to give Minnesota the two senators it deserves.

At 9 this morning, the Minnesota Supreme Court will hear Franken's motion to be granted a provisional certificate of election.

It is my understanding that their argument relies heavily on a similar Federal election case here in Minnesota involving a congressional district. In Odegard v Olson:

This has been interpreted to me to mean that the certificate itself has no bearing, as in the House (or Senate) decides who their members are. Not issuing a certificate places the canvassing winner at a disadvantage, whereas Issuing the Certificate means nothing as it has no legal bearing.

The Supremes will have to overturn their prior decisions, and that generally take a higher burden to pull off.

But the legislature is not sitting idly by, members of both houses are introducing legislation requiring the issuance of a provisional certificate to the administrative recount winner. Eric Black lays it out:

The bill says that, in a case that proceeds from the administrative recount to the election contest phase (in other words, the current case), the governor and secretary of state must issue a temporary certificate of election (the lack of such a certificate is the main argument Republicans are using to block Franken from being seated) to the candidate who is ahead at the end of the state Canvassing Board recount (in other words, to Franken) that would enable him to be seated in the Senate while the election contest proceeds in court.

I doubt the governor would sign this, and the DFL is about 3 seats shy of the veto proof majority. But maybe calmer heads will prevail, and a compromise will be reached to at least approve this legislation for future contests. Its simply not right for us to go unrepresented, while the contestant is allowed to drag his case on ad infinitum. Maybe if, at least ion the future, they don;t have the ability to prevent the seating of the recount winner by pursuing a frivolous contest, they'll reconsider the time money and effort involved in that process.

Flash