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Minnesota Supreme Court justices aggressively questioned Al Franken's lawyer today as he argued that Franken ought to be issued a provisional election certificate and seated in the U.S. Senate while the recount trial continues.
Attorney Marc Elias said Gov. Tim Pawlenty and Secretary of State Mark Ritchie are usurping federal authority by refusing to certify Franken as the winner of the long-running Senate battle, pending the end of the legal contest that Republican Norm Coleman is waging to overturn the Democrat's 225-vote lead.
If the state waits until after the trial is over, Elias said, Minnesota will have failed what he called its constitutional mandate to provide two senators.
"The state has the obligation to participate in the federal scheme ... and not opt itself out," he said.
But lawyers for Coleman and the state said that Minnesota law is clear that no election certificate may be issued until the legal contest and any subsequent appeals are over.
The four justices hearing the case this morning at the State Capitol peppered Elias with questions.
The hearing concluded after an hour, and Justice Alan Page said a ruling would be forthcoming.
Questions and responses
Justice Paul Anderson asked Elias whether he would be back in court to argue that the recount trial was no longer legitimate once an election certificate was issued.
Elias didn't answer the question directly until pressed by Anderson; no, he said, he wouldn't make that argument.
Asked whether it's true that the Senate could seat anyone it wanted regardless of what Minnesota does, Elias agreed. "They can declare me the next senator for the state of Minnesota," he said.
It seems unlikely that the Democratic-controlled Senate would seat Franken without an election certificate, however.
Justice Lorie Gildea noted a South Dakota Supreme Court case that said an election was a matter of state law and the question of who is seated is up to the Senate. "Why is that not exactly the right way to analyze this issue?" she asked Elias.
Because Minnesota isn't free to ignore the federal timetable for seating members of Congress in early January, Elias replied.
Anderson said that Minnesota law puts a high premium on tabulating votes correctly. But Elias said the state can't tell the Senate to disregard its own rules.
James Langdon, Coleman's attorney, said that the law is plain and simple: Minnesota doesn't allow for a provisional election certificate in its election code.
Moreover, there's no federal mandate that states must supply senators by the time the Senate convenes, he said.
Solicitor General Alan Gilbert, representing Pawlenty and Ritchie, said the state's interest is in getting the election right rather than simply installing someone quickly in Congress.
The statute "could not be more clear," Gilbert said. "That does not provide for a provisional certificate. That provides for no certificate." Elias was "creatively interpret[ing]" the statute, he said.
But Elias called the statute "confused" and "ambiguous." The fact that the Senate may do what it wants, he said, is no reason to wait.
Anderson asked why the Senate wouldn't want to wait to seat someone until it was sure about the winner.
"Because the perfect can't be the enemy of the good," Elias said. Several critical issues of national concern, including President Obama's stimulus package, may hinge on a single vote, he said.
Justices hearing the case included Page, Gildea, Anderson and Christopher Dietzen. Justice Helen Meyer was undergoing ankle surgery today, but Page said she will participate in deliberations.
Chief Justice Eric Magnuson and Justice G. Barry Anderson, who sat on the state Canvassing Board that certified the recount results last month, did not participate.
The hearing was held in the Supreme Court's historic chambers in the State Capitol because its regular courtroom in the Judicial Center next door is being used for the recount trial. That trial began at mid-morning, after the hearing ended.
Kevin Duchschere • 651-292-0164