In Minnesota, it's still November

Original Link: http://www.politico.com/news/stories/0309/20634.html

By MANU RAJU

Texas Sen. John Cornyn is threatening “World War III” if Democrats try to seat Al Franken in the Senate before Norm Coleman can pursue his case through the federal courts.

Cornyn, the chairman of the National Republican Senatorial Committee, acknowledges that a federal challenge to November’s elections could take “years” to resolve. But he’s adamant that Coleman deserves that chance — even if it means Minnesota is short a senator for the duration.

A three-judge panel is expected to rule any day now on legal challenges to the November election.

Coleman attorney Joe Friedberg has predicted that Franken will be on top after the court rules, arguing that an appeal to the Minnesota Supreme Court could swing the election back in Coleman’s favor.

But what if that doesn’t happen?

Nobody really knows.

As Roland Burris will recall, you can’t take a seat in the Senate without an election certificate from your state. And it’s not clear whether the candidate who’s ahead after the Minnesota Supreme Court rules could get an election certificate from Minnesota if his opponent is seeking review from the United States Supreme Court or challenging the results in a new lawsuit in federal court.

Sen. Charles Schumer, the New York Democrat in charge of the Senate Rules and Administration Committee, says that Minnesota gets its second senator as soon as the state case ends.

“Whatever the state Supreme Court decides, as I understand it, the law requires it to be certified,” Schumer says.

But Cornyn believes that Minnesota can’t certify Franken the winner if Coleman seeks review from the U.S. Supreme Court or files a new federal case. And Ben Ginsberg, a Coleman attorney and a central player on the Republican side in the 2000 Florida recount, says it’s “an open question” whether a federal court challenge puts a pause on the certification process.

Minnesota has been down a senator since the beginning of the year, and Democrats — who expect Franken to prevail eventually — view themselves as down a vote they’re entitled to have. Without Franken in the Senate, the Democrats hold a 58-41 vote advantage over the GOP; getting to 59-41 sooner rather than later would make it easier to move President Barack Obama’s agenda through Congress.

Franken currently leads in the counting by 225 votes. In a radio interview this month, Friedberg — asked if he was “confident” that Coleman would lose before the three-judge panel — said: “I think that’s probably correct that Franken will still be ahead and probably by a little bit more. But our whole argument was a constitutional argument, and it’s an argument suitable for the Minnesota Supreme Court, not for the trial court. So we’ll see whether we were right or not.”

The Coleman campaign subsequently released a statement saying it was “confident” that Coleman would win before the three-judge panel.

It could takes months — or longer — to resolve a petition for review from the U.S. Supreme Court and even longer if the loser before the Minnesota Supreme Court files a new case in a U.S. District Court.

What happens in the meantime could come down to Minnesota Gov. Tim Pawlenty, a Republican who was on John McCain’s vice president shortlist and is contemplating a run for the GOP presidential nomination in 2012.

So far, Pawlenty isn’t saying what he’ll do once the court rules.

“The recent Minnesota Supreme Court decision indicated that an election certificate could be issued once the state courts process is complete,” said Brian McClung, a spokesman for the governor. “However, if one of the parties appeals to a federal court, a question will arise whether the federal court might stay the issuance of a certificate.

“We’ll see what the courts determine,” he said.

McClung was referring to a March 6 opinion in which the Minnesota Supreme Court denied Franken’s request to compel Pawlenty and Minnesota Secretary of State Mark Ritchie to sign an election certificate declaring him the winner while Coleman was appealing the results of a hand recount before the three-judge panel.

In that ruling, the Minnesota Supreme Court said that “a certificate of election cannot be issued until the state courts have finally decided an election contest.”

But can it — must it — be issued then?

“The question is, when does the state process end?” said Richard Hasen, a professor at Loyola Law School in Los Angeles.

Hasen said it’s “not clear” whether the state process ends when the state Supreme Court rules or continues to run as the loser seeks review from the U.S. Supreme Court.

But, Hasen said, the state process definitely “would not wait” if the loser in the state proceeding chose to file an entirely new lawsuit in federal court — for example, to argue that his due-process rights were violated during the state court review.

Legal experts say Coleman or Franken would have a hard time making that kind of case. But Coleman refused to rule out the idea last week, saying only that “at this point” he does not anticipate that the case will end up before the U.S. Supreme Court.

“I’m not ruling out anything,” Coleman said at the Capitol Tuesday. “I think Minnesotans deserve to know each and every vote was counted fairly — that there’s a uniform standard. If that can be done at a trial level, that’s great. If it takes an appellate level to do that, then, you know, we have to look at that.”

Both sides are girding for a long battle.

Eric Schultz, a spokesman for the Democratic Senatorial Campaign Committee, accuses Cornyn and the Republicans of holding the Minnesota seat hostage to prevent Democrats from getting a 59th vote in a chamber in which 60 are needed to move major pieces of legislation.

“Gov. Pawlenty ought to make clear that if former Sen. Coleman chooses to appeal the outcome of the contest in the state Supreme Court that this is the end of the road — and that, consistent with the law, he will certify Al Franken the winner following that state court appeal,” Schultz said.