An election certificate is the key prize in the Minnesota Senate race -- but only if the governor signs it.
Will he or won't he?
That's the question bearing down on Gov. Tim Pawlenty, the man charged with issuing an election certificate at the conclusion of what has become a political soap opera: Norm Coleman vs. Al Franken.
In this upcoming episode, the Republican governor on the rise is confronted with a troubling, yet tempting dilemma.
Once the Minnesota Supreme Court rules on a yet-to-be-filed appeal from Coleman, Pawlenty will have to decide whether to issue an election certificate immediately or, if the ruling goes against Coleman, hold back and allow Coleman to explore a federal appeal.
Issuing a certificate to Franken, who recently was declared the winner by a special three-judge panel, would end the ordeal that has been Minnesota's Senate race and install a partner for Sen. Amy Klobuchar.
But holding out would deprive Senate Democrats of a critical 59th vote and raise Pawlenty to hero status among national Republicans, who have made Coleman's seat a cause célèbre and who already see Pawlenty as a ripe prospect for the 2012 presidential race.
Pawlenty is almost as coy about the course he will pursue as he was about his vice presidential prospects last summer. Asked recently whether he'd given any thought about when he might sign a certificate, Pawlenty replied in offhanded fashion, "Not particularly."
Former U.S. Sen. Dave Durenberger, a one-time Pawlenty mentor, said that either way, Pawlenty may stand to gain. "If he chooses not to issue a certificate, no one will hold it against him," predicted Durenberger, a Republican and Coleman supporter. "But if he went against the [GOP] establishment that is helping finance Norm, went against the political current, that would be a positive for Tim," since it would position him as acting above party loyalty.
On the other hand, Jennifer Duffy, a senior analyst with the Cook Political Report in Washington, said Pawlenty will be "walking a fine line" with his party and "listening to the very same people [Minnesotans] who he may hope will reelect him in two years. That's not a good place to be.
"Unfortunately for him, whatever decision he makes, a lot of people are going to be angry," Duffy said.
Others see an opportunity for Pawlenty.
"This isn't the hot seat for him," said Larry Jacobs, director of the University of Minnesota's Center for the Study of Policy and Governance. "This is more like a trampoline. It's hard to think of an issue that better propels him forward than taking the high road in defending voters' rights against what might be seen as Democratic hypocrisy. He's already become a national spokesman on these issues."
Pawlenty has made the rounds of the national talk show circuit, taking care to point out that he will make a decision only after careful consideration of the state high court's decision and other factors.
"The federal courts might stay the court proceedings," Pawlenty said in an interview with MSNBC's Rachel Maddow. "We want a chance to see."
Court intervention is rare
The U.S. Supreme Court has intervened in only two post-election disputes in nearly 40 years: Bush vs. Gore in 2000 and the far more obscure Roudebush vs. Hartke, a 1971 dispute over an Indiana U.S. Senate race that spent two months in the nation's highest court.
A lawyer by trade, Pawlenty has said he is troubled by two aspects of the current case: equal protection, with some counties appearing to apply different standards in accepting or rejecting absentee ballots, and a December state Supreme Court ruling that made rejected ballots' inclusion conditional on the agreement of both candidates.
"Since when does someone's constitutional right to vote depend on someone's agreeing?" Pawlenty asked Maddow.
Once the state Supreme Court hands down its ruling, he said, "I will evaluate genuinely and seriously at that point. It's quite unfair to say what you would do in advance of all that."
But elections law expert Raleigh Levine, a professor at William Mitchell College of Law, said Pawlenty may not have any such purview.
"The [Minnesota] statute does not give him any grounds for saying 'Wait for the federal court,'" Levine said. "I think he'd be on pretty shaky ground saying he needed to do a review once the state Supreme Court decides the case. He has mandatory responsibility to issue the certificate when all the requirements have been met. There isn't any discretion there."
Would a federal court appeal prevent an election certificate from being issued?
That's "an open question,'' said Ben Ginsberg, Coleman's lead attorney and a player in the Bush vs. Gore recount.
Before issuing a certificate, Pawlenty "wants to have all the facts in front of him, including the ruling from the Minnesota Supreme Court. ... It's a decision he'll make at that time," said Pawlenty spokesman Brian McClung.
Would Pawlenty reserve the right to review even if the state Supreme Court specifically ordered him to issue the certificate?
"The governor will follow the applicable orders of the Minnesota Supreme Court or the federal courts," McClung said.
Marc Elias, Franken's lead recount attorney, said he finds it "curious'' that Pawlenty would imply that the decision is his to make.
Pawlenty "does not get to apply his own, independent legal analysis to this issue," Elias said. "The governor's role is ministerial -- to prepare the paperwork. He's not the decider here."
Patricia Lopez • 651-222-1288