Franken’s gambit

Stories come and stories go but no story comes and goes quicker than Al Franken’s attempt to get a hall pass for the U.S. Senate. Unless, of course, this issue, too, ends up in court.

Franken this morning asked for a certificate of election, allowing him to take his place in the U.S. Senate.

Secretary of State Mark Ritchie, who is one of two people who would sign the certificate (the governor is the other) said “no” in short order.


“Minnesota law is very clear on when a certificate of election can be issued. Neither the governor nor I may sign a certificate of election in the U.S. Senate race until all election contests have reached a final determination. Even if the governor issues a certificate of election prior to the conclusion of the contest phase, I will not sign it.”

A few minutes later, Gov. Pawlenty also put the kibosh on the idea:


“I have a duty to follow state law and our statutes are clear on this issue. I am prohibited from issuing a certificate of election until the election contest in the courts has been resolved.”

Let’s take a look at that law 204C.40 subdivision 1:


If a recount is undertaken by a canvassing board pursuant to section 204C.35, no certificate of election shall be prepared or delivered until after the recount is completed. In case of a contest, the court may invalidate and revoke the certificate as provided in chapter 209.

Recount completed? Check. Franken gets his certificate of election.

But check subdivision 2:


No certificate of election shall be issued until seven days after the canvassing board has declared the result of the election. In case of a contest, an election certificate shall not be issued until a court of proper jurisdiction has finally determined the contest. This subdivision shall not apply to candidates elected to the office of state senator or representative

Has the “court of proper jurisdiction” finally determined the contest? Nope.

Marc Elias disputes the notion that the election certificate can not yet be issued, according to MPR’s Mark Zdechlik. “For today I think we’re going to do what we’ve done in the past which is to trust that the governor will want do the right thing. To trust that he and the Secretary of State will sign the certificate and Al Franken will then be able to take that certificate to the United States Senate,” Franken’s attorney, Marc Elias, said.

How could he come to the conclusion that issuing a certificate is a right thing to do given the clear wording of the state statute? According to an analysis on MyDD.com last week, a Supreme Court ruling in the 1962 Minnesota Congressional recount focused on the second part of the state law cited above. The Court said:


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…. 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.

See the avenue for yet another court case here?

  • BJB

    There is ambiguity: “determined the contest”.

    Does it say anything about resolving, settling, or finishing the contest?

    If the court has determined what the contest is (double counting? flawed process? missing votes? etc.) and what court the contest will hear the contest, wouldn’t that satisfy the letter of the law?

    This interpretation allows representation for Minnesotans until the dispute is resolved (winner starts over or the seat is officially declared vacant.

  • MR

    There must be more going on than Franken just saying “Please seat me.” There has to be some larger strategy, probably as Bob said, a strategy that involves a Franken lawsuit. It just doesn’t make sense that Franken would very publicly ask for his seat and then go away quietly.

    Let’s wait for the next shoe…

  • bsimon

    MR is probably right about the big picture. I wonder if he’s angling for a provisional appointment to the Senate – which would not be breaking new ground (see Eric Black’s reporting at MN Post). On the other hand, I have to wonder if an opening has been created for Pawlenty to make an appointment to fill the vacancy?

  • Paul

    alls I know is if the liberals keep stealing elections like this pretty soon we’ll have the biggest govment on the planet!

  • tiredboomer

    In Illinois, it looks like a has-been politician appointed by an (allegedly) corrupt governor, will soon be filling the second to last open senate seat. That leaves Minnesota as the only state in the nation that can’t resolve what happened on November 4th.

    I’ve been proud of how Minnesota handled the close senate election and recount. Secretary of State Ritchie set a wonderful precedent selecting canvassing board members. The canvassing board was transparent in its actions as well as honest in its decisions.

    However, this is on the verge of embarrassing.

    Legally, on its face, Mr. Franken’s request seems ridiculous. Yet he made the request.

    I’ve seen nothing to indicate Senator Coleman has any real chance of being declared winner. Yet, rather than graciously concede and walk away, like so many others throughout US history, he has decided to drag this out.

    Perhaps the previous posters are correct concerning some larger strategy leading to a “provisional” appointment. However creating a “provisional senator” will, no-doubt, require a level of “legal creativity” could also prove embarrassing.

    Apparently there is no way out. This election will continue for six years while Minnesota is represented by only one senator.

  • Elizabeth T

    Perhaps gracious would involve former Senator Coleman stating, “Please let Mr. Franken be provisionally seated until the challenges are final, so that Minnesota may be best served.”

    In the (very) unlikely situation that Mr. Coleman is declared the final winner, Mr. Franken could then equally graciously state: “thank you for the opportunity to serve the State of Minnesota, no matter how briefly.”