Franken campaign attorney Marc Elias told the Supreme Court that Minnesota is not being served because the state has only one U.S. Senator. He told the panel it should fix that by ordering Republican Governor Tim Pawlenty and DFL Secretary of State Mark Ritchie to sign and issue the election certificate, at least on a temporary basis.
"The perfect can't be the enemy of the good," Elias said. "The nation's business is going on as we speak. The nation faces issues of war and peace. Of economic crisis. You need no further to read the newspaper to know that the stimulus package hinges on one vote in the United States Senate."
The four members of the court hearing the case were quick to question Elias' argument. At several points, the members asked why the court should intercede because, under the Constitution, the U.S. Senate has the authority to seat Franken.
Justice Lorie Gildea suggested that the state's role was to determine the winner of the election first.
"So there's two different issues," Gildea said. "Who won? That's up to the states to decide. Who sits is up to the United States Congress to decide. Why is that not exactly the right way to analyze this issue?"
Justice Chris Dietzen appeared skeptical of Franken's arguments. He questioned whether the court has the authority to order Pawlenty and Ritchie to issue a certificate. Justice Paul Anderson asked Elias about whether the court has the authority to issue a provisional election certificate.
Anderson asked whether Elias might have a different opinion if Norm Coleman were successful in his attempts to have a court declare Coleman, and not Franken, the winner of the election. He asked whether Franken might then consider the certificate ordered by the Supreme Court to be the only valid one.
Anderson: "I'm not concerned what you are arguing today. Arguments change. Positions change. I am concerned what will be argued if a certificate is issued and a senator is seated and then what will be argument?"
Elias: "I think the argument will remain the same which is the contest proceeds under state law."
Anderson: "You think or it will?"
Elias: "It will proceed under state law."
Elias was also challenged as to whether the U.S. Senate has a deadline for seating a member. He suggested that the deadline was Jan. 6, when the 111th Congress came to order. But Solicitor General Alan Gilbert, from the state attorney general's office who is representing both Pawlenty and Ritchie, said there is no timeline.
"The federal constitution and federal law actually give the state of Minnesota the authority to decide how they're going to handle this manner of the election," Gilbert said. "They have decided that they're going to wait until the court has reviewed the count and the court has decided what the count is and who's entitled to the election certificate and that's when it will be issued."
Norm Coleman's attorney, Jim Langdon, argued that there is no basis in law for the issuance of an election certificate on a provisional basis. He said the Nov. 4 election, the recount and Coleman's election challenge are all parts of the 2008 election.
"Minnesota has made a determination that when it comes for the time to decide 'Who has won?' It's important to take the time to get it right," Langdon said. "And that's exactly what this contest court is doing as we speak."
Langdon and Elias both say they expect the election contest now being heard by a separate three judge panel to take several weeks. And it may take even longer before an election certificate is issued. Coleman's attorney said in court that he believes the certificate can't be issued until all of the appeals in state court are finished.
Justice Helen Meyer did not appear at the oral arguments but will participate in the decision. Chief Justice Erik Magnuson and Justice G..Barry Anderson recused themselves because they were members of the state canvassing board that oversaw the recount.