Does Franken Finally Win? A Legal Analysis

Everyone agrees it was a major story today for the Minnesota State Canvassing Board to declare Al Franken the official winner of the recount -- but is it the end of the story?  We all know Norm Coleman can file a lawsuit to contest the results further, but will that really delay Franken's entry into the Senate?

Some blogs have suggested that Minnesota law is kind of unique in that the winner of an election doesn't get officially certified as long as there's a dispute pending in court, and John Cornyn has vowed to filibuster Franken if the Democrats try to seat him before he's officially certified. So can Franken get certified by the state now, or does he have to keep waiting?

As specialized as the Internet is, I'm frankly surprised that there's not some source like the "Minnesota Election Law Blog" that answers all these arcane questions in the most minute detail -- and maybe there is, and I'll be hearing about it soon.  But absent some authoritative source, I thought I'd try to research the question myself.

The key Minnesota statute provides as follows:


Subdivision 1. Preparation; method of delivery.

The county auditor shall prepare an election certificate for every county candidate declared elected by the county canvassing board, and the secretary of state shall prepare a certificate for every state and federal candidate declared elected by either a county canvassing board or the State Canvassing Board. Except as otherwise provided in this section, the secretary of state or county auditor, as appropriate, shall deliver an election certificate on demand to the elected candidate. In an election for United States representative, the secretary of state shall deliver the original election certificate to the chief clerk of the United States House of Representatives. In an election for United States senator, the governor shall prepare an original certificate of election, countersigned by the secretary of state, and deliver it to the secretary of the United States Senate. In an election for state representative or state senator, the secretary of state shall deliver the original election certificate to the chief clerk of the house or the secretary of the senate. The chief clerk of the house or the secretary of the senate shall give a copy of the certificate to the representative-elect or senator-elect. Upon taking the oath of office, the representative or senator shall receive the original certificate of election. 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.

Subd. 2. Time of issuance; certain offices.

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.

I've highlighted the key provisions.  Section 1 appears to state that once the Canvassing Board has rendered its final decision, the Secretary of State and the Governor are required to sign off on a certificate of election.  It's what we call a "ministerial act," meaning those officials have no discretion to say no.  It goes on to say that the certificate shall not be issued until the recount is completed - which it has been, in our case - but it declines to go further and say that, if a contest is filed, the certificate still has to wait.  Instead, it provides that if the contest ends up changing the outcome of the election, the court is empowered to revoke the certificate that was already issued.  So this section says pretty clearly that based on the Canvassing Board's ruling today, Franken gets his certificate.

But wait, then there's section 2!  Section 2 says that there's no certificate until the court renders a final ruling on the contest - which would include any and all appeals.  So I guess Franken has to wait after all.

The law is seldom that clear, though, which is why lawyers get paid big bucks to tell you what it says.  Here, we have to go beyond the statute to review the seminal case of Odegard v. Olson, 264 Minn. 439 (1963).  That's a very Minnesotan name for a case, by the way.

The Odegard case involved a disputed Congressional election from 1962, in which the DFL candidate had won by a whopping 348 votes.  Although the canvassing board had declared the DFLer the winner, the Republican filed an election contest with Congress (a different procedure from what we have today), and went to court seeking to enjoin the Secretary of State from issuing an election certificate to the DFLer pending the outcome of the election contest.  The Minnesota Supreme Court had this to say:

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. Our courts are divested of jurisdiction by U.S. Const. art. I, § 5, which provides: "Each house shall be the judge of the election returns and qualifications of its own members, * * *." The determinative fact in the mechanics of this particular election is the act of the state canvassing board in declaring the election of the respondent pursuant to  [*443]  authority of that board under Minn. St. 204.31, subds. 3 and 4. The certificate of election as provided by § 204.32 has no greater significance than a publication by the secretary of state of the official action taken by the canvassing board. The effect of any order of this court enjoining the secretary of state from performing the ministerial function of furnishing respondent a certificate of election would be gratuitous and of no force as bearing upon the merits of the election contest pending in the House of Representatives. It would, as expressed in State ex rel. 25 Voters v. Selvig, 170 Minn. 406, 408, 212 N.W. 604, be "officious and nugatory." The contest is pending in a forum, the jurisdiction of which this court is bound to respect. The House of Representatives may seat members elected without a certificate, just as it might refuse to seat members who have a certificate, if it chooses to do so. 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.

In plain language, the court is saying that since Congress is the final judge of the returns, according to the Constitution, the election certificate has no real significance since Congress would be free to accept or disregard it anyway.  Accordingly, the only effect of an injunction would be to give the losing candidate a political advantage (in the present context, this equates to "giving John Cornyn an excuse to filibuster"), and the court held that to be an insufficient basis for granting an injunction.

So this case strongly suggests that Franken will get his election certificate after all.

Of course, none of this prevents Coleman from filing an election contest in court if he wants to.  (In fact, in the time it took me to write this diary, that contest may have already been filed and decided.)  The statute relating to Senate election contests seems to confirm what we've already concluded about how the process works:


When a contest relates to the office of senator or a member of the house of representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election. The judge trying the proceedings shall make findings of fact and conclusions of law upon that question. Evidence on any other points specified in the notice of contest, including but not limited to the question of the right of any person to nomination or office on the ground of deliberate, serious, and material violation of the provisions of the Minnesota Election Law, must be taken and preserved by the judge trying the contest, or by some person appointed by the judge for that purpose; but the judge shall make no findings or conclusion on those points.

After the time for appeal has expired, or in case of an appeal, after the final judicial determination of the contest, upon application of either party to the contest, the court administrator of the district court shall promptly certify and forward the files and records of the proceedings, with all the evidence taken, to the presiding officer of the Senate or the House of Representatives of the United States. The court administrator shall endorse on the transmittal envelope or container the name of the case and the name of the party in whose behalf the proceedings were held, and shall sign the endorsement.

So then, this statute recognizes the House and Senate as the final judge of any contested election.  The court reviews all the evidence and makes a ruling as to which candidate received more votes, and then forwards that ruling - together with all the evidence - to the appropriate House of Congress to handle as it pleases.  This means that the Senate effectively has the power to act as a Court of Super-Appeals and, in theory, decide the election differently if it believes the court got it wrong.

What all this means is that Franken was probably correct to declare victory today, in the sense that he will get seated in the Senate, although Coleman of course still gets his long-shot court challenge if he wants to file it.  I personally doubt the Republicans will hold together their entire caucus to filibuster Franken if he holds an actual certificate of election in his hand, and he's legally entitled to that certificate right now.

Tags: Al Franken, MN-Sen, norm coleman (all tags)



Re: Does Franken Finally Win? A Legal Analysis

Interesting.  A quick question: the language that subd. 2 "has no application to a contest in the United States Senate or House of Representatives" - could that not be read as stating that, if Minnesota chooses to delegate resolution of an election contest to Congress, it cannot thereafter interfere in those proceedings?  Now that election contests are handled by state court (I assume), we're no longer in the situation envisioned by that opinion, are we?  Minnesota has taken back some authority that it previously delegated to Congress.

by rfahey22 2009-01-05 01:10PM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

I think the court case recognizes that Congress has the final authority because of what the federal Constitution says, not because Minnesota chose to delegate the final authority to them.

Consistent with the Constitution, Minnesota has now empowered its state courts to get involved in the process - but it's telling that in the case of a Congressional election, the court only gets to decide the factual issue of who received more votes, not to actually declare a winner.  In my view, that's because Congress retains the last word.

by Steve M 2009-01-05 01:13PM | 0 recs
That makes sense...

Thanks. Still, I doubt the GOP won't at least try to make a spectacle out of this despite the fact they have no legal leg to stand on.

by atdleft 2009-01-05 02:02PM | 0 recs
Re: That makes sense...

Harry Reid seems to think they have a leg to stand on, as he has decided to not seat until the legal challenges have been exhausted.

maybe you didnt get the memo.

here it is. ews/idUSTRE5045LF20090106?feedType=RSS&a mp;feedName=politicsNews&rpc=22& sp=true

by moscow 2009-01-06 01:04AM | 0 recs
Re: That makes sense...

Interesting.  From a statement that they will not attempt to seat Franken on Tuesday, you infer that they will not seat him until the legal challenges have been exhausted.  That's an interesting method of reading.

by Steve M 2009-01-06 02:32AM | 0 recs
Re: That makes sense...

I agree that Moscow is inferring quite a lot, but what on earth is hideworthy in his comment?

by sneakers563 2009-01-06 06:57PM | 0 recs
Re: That makes sense...

I assume it's because his other comments clearly mark him as a troll, and he's posting false information in this comment.  But I try to refrain from hiding comments in my own diary, on general principles.

by Steve M 2009-01-06 07:38PM | 0 recs
Re: That makes sense...


by moscow 2009-01-07 06:27AM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

Well done, Steve!

by DizzyQueen 2009-01-05 01:13PM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

A news report says that Coleman may, instead of or in addition to an election contest, launch an equal protection challenge in federal court following Bush v. Gore. Leaving aside that such a challenge would probably succeed only if Coleman lucked out due to the Court's complete bias and total lawlessness, as Bush v. Gore did and Coleman is unlikely to find for his lower level position, Bush v. Gore does stand for some sort of federal judicial review of election contests.  But wouldn't Coleman's effort to obtain federal court jurisdiction run into some procedural problems such as exhaustion of state remedies, abstention, or some such doctrine?  And aren't some of his arguments on equal protection  -- such as the canvassing board's alleged duty to order the counties to do this or that -- already deternmined in the Supreme Court's decisions  -- i.e., res judicata?  Does Coleman have a realistic way of moving this contest to federal court?

by tyva 2009-01-05 02:18PM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

Off the top of my head, the best defense to a Bush v. Gore type argument is that unlike a Presidential election, in the case of a Senate election the Constitution clearly establishes the Senate as the final judge in any dispute.  In other words, even if there's supposedly an equal protection violation, maybe it's for the Senate and not the federal courts to rule on that.

by Steve M 2009-01-05 02:26PM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

That's the exact type of argument that didn't work in Bush v. Gore, except there the House would have decided who won the Presidency.  

by tyva 2009-01-05 02:51PM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

I just took a look at Gore's Supreme Court brief and I didn't see any argument like that.  Also, I don't know which provision of the Constitution would purport to make the House the final judge of all election disputes.

The procedure for counting electoral votes and resolving objections is set forth in 3 U.S.C. 15, but that's obviously not a constitutional provision which would arguably divest the judicial branch of its prerogative to address issues like equal protection violations.  On the other hand, in the case of a House or Senate election you very clearly have such a provision, which provides that each house is the judge of its own elections and returns.

by Steve M 2009-01-05 03:14PM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

Article II, Sec. 1.  In the 1876 Hayes v. Tilden election, I believe, the House set up a commission to determine how the electoral votes of each state should be allocated.

by tyva 2009-01-05 03:39PM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

The Court in Bush v. Gore stated that the decision couldn't be used as precedent for other cases.  It said the decision was limited to the facts of the case.

by DreamsOfABlueNation 2009-01-06 04:37PM | 0 recs
That does not matter

Courts of Appeals have disregarded that embarrassing aside and treated Bush v. Gore as precedent.

by JJE 2009-01-06 11:43PM | 0 recs
Re: That does not matter

Interesting.  In which elections has the case been used?

by DreamsOfABlueNation 2009-01-07 12:06AM | 0 recs
The Sixth Circuit

has cited it a few times.  Here is a recent article about this issue: ar.html

There are some courts and lawyers who are following the SC's edict, so my statement that "It does not matter" was too sweeping.  Nonetheless, it is being cited.

by JJE 2009-01-07 06:50AM | 0 recs
law geeks unite!

great diary steve, really interesting and helpful in understanding the situation in minnesota.  thanks.

by canadian gal 2009-01-05 04:54PM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

We've managed to ignore three or four laws already pertaining to this election, so why not this last?

Seat Franken.  Why not?  We've got the White House, they can't touch us.

by moscow 2009-01-05 08:50PM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

I'd be interested to hear what exactly about my diary leads you to believe that a law is being ignored.  Perhaps I did not explain things clearly enough.

by Steve M 2009-01-05 08:54PM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

Hey, Im with you!  Seat him!

by moscow 2009-01-05 09:10PM | 0 recs

and then maybe we'll have enough votes to make a Department of ACORN AMIRITE?!

by JJE 2009-01-05 09:17PM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

Surely there must be a word for the sort of person who goes around proclaiming that laws are being ignored, but then is unable to identify even a single such law.  "Reality-based" would not be that word, that much is for sure.

by Steve M 2009-01-05 09:24PM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

You're talking to Miles Outlandish aka Reebus aka Rankles aka Lemon716....

by Jess81 2009-01-06 05:12AM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

Count ALL the votes! Why..when Mr Franken FINALLY gets a lead on Mr Coleman does he want the process shut down? Tired of devining votes for himself...ATTICA! ATTICA! ATTICA!

by jdmars02 2009-01-07 11:46AM | 0 recs
Re: Does Franken Finally Win? A Legal Analysis

As one who has watched the entire process unfold, I can not even begin to describe how wrong you are.

by lojasmo 2009-02-06 03:21AM | 0 recs


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