Several members of the U.S. Senate have said that a candidate can't join the senate until he presents a proper election certificate. And state law says a proper election certificate can't be issued until there has been "final determination" of an election contest.
That puts Minnesota's U.S. Senate race in legal limbo as the state waits for the contest, and a possible appeal to be finished.
What complicates things is how the courts and two key politicians interpret "final determination."
Gov. Tim Pawlenty says his signature on an election certificate may be delayed until appeals on both the state and federal level are exhausted.
"It's not a matter of what I want or don't want. It's a matter of what the law allows or prohibits," Pawlenty said. "If the matter is appealed, the lower court order will almost certainly be stayed in legal parlance, or what that means is held in abeyance, and so that doesn't have force and effect. It would be improper for me to sign the certificate under those circumstances. If they order me to sign the certificate and there's no appeal or there's no stay of that order, of course, I will follow the law, but I'm not going to sign a certificate until it's the legally appropriate thing to do."
Pawlenty added that he hopes the courts will give him guidance on when he can issue and sign the election certificate.
Pawlenty's interpretation of the law is important because the creation of the certificate begins in his office. State law requires the governor and the secretary of state to both sign the certificate declaring a winner and then send it to the U.S. Senate.
While Pawlenty said it's possible that the election certificate may have to wait until the appeals are finished on both the state and federal level, Deputy Secretary of State Jim Gelbmann said the election certificate should be issued sooner than that.
"Our opinion is that once all of the state appeals have been exhausted, it appears that the governor could issue an election certificate but the attorney general's office has reserved the right to do further research on this issue," he said.
In other words, Gelbmann said the election certificate can be issued after the three-judge panel makes its ruling, unless the loser appeals the case to the Minnesota Supreme Court.
Two legal scholars agree on that interpretation of state law. But they disagree over how clear the law is on that matter.
"In my view, the final determination of the contest is what happens at the state supreme court, but one should admit that the statute is not 100 percent clear on that point," said University of Minnesota law professor Guy Charles.
"Minnesota law is clear that once a court of proper jurisdiction, whether it's the three-judge panel if there's no appeal or the Minnesota Supreme Court if there is an appeal, once that court has finally determined the contest, that's when the election certificate issues," said Raleigh Levine, a professor at William Mitchell College of law.
Charles said the law doesn't say exactly when an election certificate should be issued.
"There's nothing in the statute that specifically says 'this is when it must be done.' The statute is a little bit ambiguous in that regard," he said. "It simply says 'when a court of proper jurisdiction has finally determined the contest.'"
Both Charles and Levine say what complicates matters is the politics involved in the U.S. Senate race. Pawlenty, a Republican, has campaigned for Coleman. He also recently told a conservative news outlet that he thinks Coleman "has a good chance" to get the recount overturned in the courts.
After a hand recount of nearly 3 million votes, Franken has a 225 vote lead over Coleman. Raleigh Levine, from William Mitchell, said there are two ways to interpret Pawlenty's stance on the law. She said the first is that Pawlenty is being cautious and waiting for direction from the court.
"The other is that he's acting in a politically expedient way on the assumption that Franken will be the winner and he'd like to avoid having to have Franken seated for as long as possible." she said.
Both Levine and Charles say it's possible that the U.S. Supreme Court could request that an election certificate not be issued until the court weighs in on any possible appeals. But they say that's unlikely, because state law, not federal law, covers election certificates.
The Minnesota Supreme Court could clear up some of the confusion over an election certificate rather quickly.
The court is currently considering a motion by Al Franken to require the governor and the secretary of state to issue and sign an election certificate declaring Franken the winner. The court could approve Franken's motion or even provide some direction on when the election certificate should be issued. So far there's been no indication of what the court might do.