Burris case casts shadow over Franken seating

Norm Coleman announces legal action
Norm Coleman announced at a press conference on Tuesday that he is filing suit over the results of the recount in the U.S. Senate race. The recount numbers give his DFL opponent, Al Franken, a 225-vote lead.
MPR Photo/Elizabeth Stawicki

(AP) - The scuffle over a replacement senator for President-elect Barack Obama highlights an obstacle likely to keep Democrat Al Franken from taking office in Washington before a court challenge over his apparent victory in Minnesota is resolved.

The U.S. Senate convened its new session Tuesday with two states down a senator. Minnesota's seat is empty because of an ongoing dispute over who won the Nov. 4 nail-biter and Illinois is mired in a fight over an appointment by a governor suspected of trying to sell Obama's seat.

Both would-be senators have this in common: They lack a proper election certificate.

Illinois appointee Roland Burris has an election certificate from disgraced Democratic Gov. Rod Blagojevich that isn't countersigned by the secretary of state.

Burris and Reid
Illinois U.S. Senate appointee Roland Burris meets with Senate Majority Leader Harry Reid, D-Nev., on Capitol Hill January 7, 2009 in Washington, DC. Burris, who was appointed by Illinois Governor Rod R. Blagojevich to replace President Elect Barack Obama's Senate seat, returned to the Hill for a meeting with Democratic Senate leaders to discuss his appointment to the Senate.
Alex Wong/Getty Images

Franken lacks a certificate altogether because Republican Norm Coleman is contesting his recount loss in court, which by Minnesota law prevents top state officials from signing off on the race.

And that document is paramount, senior Democratic Sen. Dick Durbin told reporters Wednesday after he and Senate Majority Leader Harry Reid met with Burris.

"This has been a rule in the United States Senate since 1884. And since 1917, when we started the popular election of the senators, we have never, ever waived this rule for any election or appointment," said Durbin, who is also from Illinois.

The rule for a certificate with both signatures, Durbin said, has "never been waived in the history of the United States Senate. So it's an important rule and one not easily challenged or changed."

"Since 1917, when we started the popular election of the senators, we have never, ever waived this rule for any election or appointment."

Burris is awaiting a court ruling that could earn him the second signature. Franken's race appears to be months from resolution.

Franken's campaign has declined to say if he will ask to be seated while Coleman's lawsuit proceeds. His lawyer, Marc Elias, said it's a question for the Senate, not Franken. Senate Republicans say they would block a move to seat Franken early.

The former "Saturday Night Live" writer and radio show host moved past Coleman during a hand recount of nearly 3 million ballots. When it ended Monday, Franken had 225 more votes than Coleman after trailing the incumbent by a similar margin following the Election Night count.

In his lawsuit - known in Minnesota as an election contest - Coleman alleged election and recount irregularities that caused some ballots to be wrongly counted and others improperly excluded. His hopes rest with a three-judge panel that will conduct a trial and rule on the claims.

Republican Gov. Tim Pawlenty, who will eventually sign the winner's certificate, came to Coleman's defense on Wednesday.

"It's disappointing that it's going to take longer but I think the more important thing to focus on is, the court process will allow I think everybody to say every stone was turned over, and in the end then have more confidence in the result," Pawlenty said.

The next big decision is who sits on the judicial panel.

Under state law, the Supreme Court chief justice is supposed to pick the judges. But a state courts spokesman said Wednesday that Chief Justice Eric Magnuson will delegate the assignment to Justice Alan Page, the court member with the most seniority.

Magnuson, a Republican appointee, served on the board that oversaw the recount. Page, who has been on the court since he was elected in a 1992 nonpartisan race, has been mentioned previously as a possible Democratic candidate for political office. There was no indication about how soon he would act or whether the campaigns would have input.

Coleman's campaign had a brief reaction to the development.

"We have every reason to believe Justice Page will appoint a three-judge panel that will carry out its duties in a fair and impartial manner," spokesman Mark Drake said.

Franken spokeswoman Jess McIntosh said the campaign respects Magnuson's decision to turn over the selection to Page.

A trial is required to commence within three weeks of the case being filed. But there is no deadline for completion.

(Copyright 2009 by The Associated Press. All Rights Reserved.)