Minnesota's Supreme Court on Friday blocked Democrat Al Franken's petition for an election certificate that would put him in the U.S. Senate without waiting for a lawsuit to run its course.
The decision means Minnesota's second Senate seat will remain empty until the lawsuit and possible appeals in state court are complete. Republican Norm Coleman's lawsuit challenging Franken's recount lead is at the end of its sixth week, and both sides expect it to last at least a few more weeks.
After a state board certified recount results showing Franken 225 votes ahead, he sued to force Gov. Tim Pawlenty and Secretary of State Mark Ritchie to sign an election certificate. Franken argued that federal law stipulates each state will have two senators when the Senate convenes, and that law trumped a state law that blocks such certificates while lawsuits are pending.
But the state Supreme Court disagreed. In their ruling Friday, the justices said states aren't required to issue such certificates by the date that Congress convenes.
The justices wrote in their unsigned opinion that "if the Senate believes delay in seating the second Senator from Minnesota adversely affects the Senate, it has the authority to remedy the situation and needs no certificate of election from the Governor to do so."
Coleman's team hailed the ruling for giving the state courts space to sort out Coleman's lawsuit.
"This wise ruling will ensure that Harry Reid, Al Franken and Chuck Schumer cannot short-circuit Minnesota law in their partisan power play," Coleman adviser Ben Ginsberg said, referring to two Democratic leaders in the Senate.
Franken's campaign had no immediate comment to the ruling, which came down just as the court hearing the Coleman election lawsuit began hearing critical motions of its own.
The court was listening to oral arguments on a Franken motion to dismiss the lawsuit and a Coleman motion to declare a key recount rule illegal. The rule in question is at the heart of a Coleman claim that some people got two votes because both a damaged and replacement ballot for them were counted.
Meanwhile, attorneys for Norm Coleman argued that their legal case is still valid and that about 1,725 rejected absentee ballots should be opened and counted.
Franken attorney Marc Elias told the panel that the Coleman lawyers have proved at most, that a few dozen ballots should be opened and counted--far less than the 225 needed to surpass Franken's lead after the recount.
Elias went down a summary that checked off how Coleman's side introduced ballots that lacked key information such as whether the voter or witness was registered in Minnesota. After his calculations, he said there are maybe a few dozen ballots at issue.
"They have called more than 50 witnesses, they have introduced hundreds and hundreds of documents, thousands of pages and yet despite all of those witnesses and other evidence, they rested their case without having proved little more than a handful of absentee ballots that were improperly rejected," Elias said.
Coleman attorney Jim Langdon told the panel that Elias' numbers are simply wrong. He said Coleman's side has presented compelling evidence that thousands of Minnesota voters have been disenfranchised and as a matter of constitutional law and state election laws, their votes should be counted. Langdon told the panel that the Coleman side disagrees with Elias' numbers.
"We think that they have left out substantial chunks of the evidence," Langdon said. "I'm sure inadvertently, a lot of paper has come in in this case and a lot has come in at the very end of our case."
Langdon said there are at least two major roadblocks that stand in the way of the panel determining how many votes were legally cast. One is the panel's ruling on Feb. 13. In that ruling, Coleman attorneys claim the panel created a conflict by making illegal some ballots that the state canvassing board approved and counted.
The other roadblock, says Langdon, is that the secretary of state' office hasn't finished updating its voter registration database, which also accounts for why some of the ballots appear to be invalid when they may not be.
"The door is not closed; there is not conclusive evidence one way or another for any of the voters," he said. "Until the secretary of state does what it's told both parties and the court, which is to give us and the court a CD [containg updated voter information] that it will certify that's as complete as it's going to get."
In rebuttal, Marc Elias said it's too late for that evidence because Coleman's side rested its case. He said the Coleman camp could have proven that voters were registered.
"They had any number ways to prove it including the statewide voter registration system, including call witnesses, including calling voters and they chose not to avail themselves of that and that was a strategic decision they made during their case," Elias said.
If the three-judge panel denies Franken's request to dismiss the case, Franken attorneys say they have at least about two more weeks of testimony. A ruling on the motion to dismiss isn't expected until next week.
(The Associated Press contributed to this report.)
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