The legal fight between Al Franken and Norm Coleman is headed to the desk of Gov. Tim Pawlenty — a no-win predicament for a Minnesota Republican with his eye on a White House run in 2012.
Franken won big Tuesday when a three-judge panel allowed the review of no more than 400 absentee ballots in a race he currently leads by 225 votes. Coleman’s camp says an appeal to the Minnesota Supreme Court is coming; once that’s done, the dispute lands in Pawlenty’s lap.
If Franken’s ahead at that point, Pawlenty will have a choice: sign the election certificate that will allow Democrats to seat Franken in the Senate or play to the Republicans whose support he’d need in 2012 by withholding the certificate while Coleman challenges the election in the federal court system.
“The Republican Party nationally and in Minnesota is playing not just with fire, but with dynamite,” said Rep. James L. Oberstar, a Democrat and the dean of Minnesota’s congressional delegation.
Oberstar — like a lot of Democrats — says November’s election should finally be over as soon as the Minnesota Supreme Court rules.
If Pawlenty and the Republicans push it further, he says, “this thing is going to blow up in their face.”
The loser before the Minnesota Supreme Court could seek a review from the U.S. Supreme Court or file a whole new case in U.S. District Court. Texas Sen. John Cornyn, the chairman of the National Republican Senatorial Committee, has said that such a legal challenge could take “years” — and that he’s OK with that if that’s what it takes to ensure that all of the votes have been counted.
Democrats accuse Coleman, Cornyn and other Republicans of stalling — denying Minnesotans their second senator so as to deny Democrats their 59th vote in the Senate.
Several Democratic aides and senators said Wednesday that Senate Democrats would probably try to seat Franken if he gets an election certificate even if Coleman seemed likely to keep pursuing his challenges. But the aides and senators said that, without a certificate, Democrats are unlikely to try to seat Franken since the GOP would probably attempt to filibuster such a move.
That leaves Pawlenty in the hot seat — and whatever he decides could have implications in 2010 and 2012. Up for a third term next year, Pawlenty risks angering Minnesota Democrats and independents if he refuses to sign an election document for Franken — and a loss if he runs in the governor’s race would imperil a presidential run in 2012. But if he signs the certificate and Coleman seeks a federal appeal, he risks infuriating conservatives who despise Franken — and thereby imperiling his chances in the Republican presidential primary.
Republicans argue that Pawlenty should not sign any documents until Coleman has a chance to take the case through the federal courts.
“I hope the governor, and I expect he will, will do the right thing,” said Rep. John Kline, a Republican in his fourth term who represents an area south of St. Paul. “The right thing is to get this through the courts and get a definitive answer. I’m sure the governor is as concerned as I am that this process has got so many discrepancies and disparities in it that it needs to go through the courts and be resolved.”
Brian McClung, a spokesman for Pawlenty, said the governor views the matter as an interpretation of state law — not a political question.
“The governor will follow the law and the determinations of the courts regarding the issuance of an election certificate,” McClung said. “Minnesota law says very clearly that ‘an election certificate shall not be issued until a court of proper jurisdiction has finally determined the contest,’ and the Minnesota Supreme Court recently issued a ruling upholding that statute. It&rquo;s important that this process be handled fairly and properly.”
McClung said Pawlenty “will see what the courts determine,” since a federal court could issue a stay and prevent a certificate from being issued if the loser chooses to continue the appeals process.
The dispute centers on when the state process ends: Democrats say that a recent state Supreme Court decision denying Franken an election certificate until the state process ends implies that he’s entitled to one as soon as the Minnesota Supreme Court rules on the election contest. But Ben Ginsberg, one of Coleman’s lawyers, said the court’s decision never waded into the federal court issue.
Mark Ritchie, a Democrat and the Minnesota secretary of state, “strongly believes” that once the state Supreme Court rules, both he and the governor should sign an election certificate, a spokesman said. The spokesman added that Ritchie would ask the state’s attorney general, Lori Swanson, also a Democrat, to issue a legal opinion on the matter that could help persuade Pawlenty to sign an election document.
Senate Democrats set a precedent by demanding a properly signed document to seat Roland Burris.
Of course, Coleman could spare Pawlenty a difficult decision by dropping his appeal if he is losing after the state’s Supreme Court rules — but his Republican colleagues in Washington are showing no signs of letting this go away quietly.
“I think if there is a realistic prospect for a complete count that’s fair that would give Sen. Coleman the victory, we should not give up until the last avenue of appeal is over,” said Sen. Jeff Sessions (R-Ala.). “Everybody on our side believes that.”
Sen. John Thune (R-S.D.) said he doesn’t see a political downside for Pawlenty if he holds off from signing an election certificate.
“I think if there are good, strong arguments for continuing to let the process play out ... I don’t think he will risk any backlash in doing that,” said Thune, a member of the GOP leadership. “And I don’t think that Norm would carry on with this unless he thought he had a very good chance of prevailing in the end.”
Cornyn said there are several issues the three-judge panel left unresolved, and he predicted that Coleman might be able to turn it around upon appeal.
And Cornyn said a decision on whether to sign the certificate “may not be up to [Pawlenty]” after all.
“As a former judge, I can tell you I don’t think a court would likely allow that to happen, because it would essentially moot the case without giving them a chance to decide it. So I think it’s more likely a court would issue a stay in order to preserve the question for a decision.”
But Jim Manley, a spokesman for Senate Majority Leader Harry Reid (D-Nev.), said that once the state Supreme Court rules, the law requires the governor to sign an election certificate. Manley said it would be “politically perilous” to block “a Democratic effort to seat Franken” by withholding the document.
“I hope that the governor, whatever the outcome of the [state] Supreme Court, will say that due process has been honored, the Minnesota statutes have been followed, there’s a winner and now it’s time to move forward,” said Senate Majority Whip Richard J. Durbin (D-Ill.).