Wednesday, January 14, 2009

On the Seventh Day

When the 7 day waiting period for issuance of a Certificate of Election was adhered to, Senator Elect Al Franken's attorneys sent letters to the Governor and Secretary of state requesting the Certificate. To be clear, I thought this move was poor form on the part of Franken's attorney's. However, they wouldn't be doing their job if they didn't show due diligence in doing everything in their power to serve their client.

After digging around, it seems there is case law to support the move. Case law that has superseded State election statutes in the past. Federal law and court precedent (Odegard v Olson 1963) support a position that an election certificate should be issued despite MN Statutes

In Odegard v Olson, , the MN Supreme Court ruled:

After carefully examining these statutory provisions, we must come to the conclusion that § 204.32, subd. 2, has no application to a contest in the United States Senate or House of Representatives. Our courts are divested of jurisdiction by U.S. Const. art. I, § 5, which provides: "Each house shall be the judge of the election returns and qualifications of its own members, * * *." The determinative fact in the mechanics of this particular election is the act of the state canvassing board in declaring the election of the respondent pursuant to [*443] authority of that board under Minn. St. 204.31, subds. 3 and 4. The certificate of election as provided by § 204.32 has no greater significance than a publication by the secretary of state of
the official action taken by the canvassing board. The effect of any order of this court enjoining the secretary of state from performing the ministerial function of furnishing respondent a certificate of election would be gratuitous and of no force as bearing upon the merits of the election contest pending in the House of Representatives. It would, as expressed in State ex rel. 25 Voters v. Selvig, 170 Minn. 406, 408, 212 N.W. 604, be "officious and nugatory."

The contest is pending in a forum, the jurisdiction of which this court is bound to respect. The House of Representatives may seat members elected without a certificate, just as it might refuse to seat members who have a certificate, if it chooses to do so. Since the House of Representatives is the final and exclusive judge of the legality of election or qualification of its members, this court should not gratuitously issue a prerogative writ which might be considered a tactical advantage for one or the other candidate.
This has been interpreted to me to mean that the certificate itself has no bearing, as int he House (or Senate) decided 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.

So, under MN case law, Franken's attorneys do have recourse, but wouldn't have been able to take the next step without getting a denial first. They received their denial, and now have filed in MN Supreme Court I presume in hopes that Odegard v Olson will be upheld:
In Franken's petition to the Supreme Court on Tuesday, he asks justices to order Gov. Tim Pawlenty and Secretary of State Mark Ritchie to issue him an election certificate. Pawlenty and Ritchie on Monday refused to do so, saying state law did not permit it. Franken lawyer Marc Elias cited another part of state law Tuesday in arguing that Franken should be certified and seated pending the outcome of Coleman's contest in court.

"The impetus for this is the need for Minnesota to have full representation in Washington, D.C.," Elias said.
Frenken's attorneys continue to school the Coleman Camp, it is surprising that Coleman has not gone to the bull pen for this extra inning final game of the championship.

If O v O is upheld, they would most certainly win in the court of law, but take a huge risk in the court of public opinion.

*I've cribbed this post together from various legal analysis of this situation. It is possible some edits are not properly block quoted. Google is your friend if you want to research on your own.

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