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Two Men Say They’re Jesus, One of Them Must Be Wrong
By Jeff Fecke | January 13, 2009
When I heard that the Franken campaign had decided to sue to force Mark Ritchie and Tim Pawlenty in order to get a certification of election, I must admit I sighed. It seemed like a bit of whining and trying to game the system. Look, I voted for Franken and think he’s going to win the election contest pretty easily. But I also know that Minnesota statutes are very clear that no certificate can be issued until an election contest is completed.
Or am I? Because after reading the brief filed by the Franken campaign, I’m not so sure.
Ritchie and Pawlenty declined to issue a certificate of election based on Minnesota Statutes § 204C.40, subdivision 2:
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.
But we’ve been kind of ignoring subdivision one of that section, and we shouldn’t, because it creates a bit of ambiguity:
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 overnor 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. [emphasis mine]
That’s pretty clear, too, isn’t it? It says that if a recount is undertaken, no certificate gets issued until it’s done, and a court can later invalidate the certificate that gets issued. In other words, Franken should get a provisional certificate, that can be shredded later if Coleman wins the election contest.
Now, this isn’t a slam dunk for Franken, or even a likely win; because subdivision 2 exempts state legislators and nobody else, it’s reasonable to read it as limiting all other offices except for state legislative offices to the wait-for-the-contest-to-end process. Indeed, I’m not sure it’s not the proper reading of it.
But there’s no doubt that there’s a tension between the two subdivisions, one that can only be resolved by the Supreme Court of Minnesota. That’s what courts are there for, after all. If the court finds that Franken shouldn’t get a certificate, that won’t be a travesty of justice. But it appears that they could give him a certificate for utterly legitimate reasons, too. At the very least, this isn’t the long shot I thought it was when I first heard about it.
Topics: Al Franken, Norm Coleman | No Comments »