Al Franken’s premature electionation

Last month Al Franken filed a petition in the Minnesota Supreme Court seeking an order for the issuance of a certificate of election. Franken argued that Minnesota law requires, and that federal law also preempts state law and requires, issuance of the certificate to him. With the election certificate, Franken sought to be “provisisonally seated” in the Senate

Franken accordingly asked the Court to order Governor Pawlenty and Secretary of State Ritchie to issue the certificate that state law otherwise precludes them from issuing until the conclusion of the election contest that is proceeding in the Minnesota courts. Governor Pawlenty and Secretary of State Ritchie have elected to abide by state law and declined to issue Franken the election certificate.

In January Franken’s attorneys had sent a letter to Governor Pawlenty and Secretary Ritchie asking them to sign off on an election certificate that names Franken the winner of the election. Franken’s attorneys told reporters on a conference call that Pawlenty and Ritchie had a legal obligation to sign. “We believe the law is clear,” said lead Franken attorney Marc Elias.

At oral argument on Franken’s petition before the Minnesota Supreme Court the justices pressed Elias on the difficulties with his argument. If Elias didn’t visibly squirm, he at least sounded extremely uncomfortable. For want of Franken’s vote in the Senate, Elias pleaded with the Court at the end of his argument, the Democrats’ sacred porkapoolaza package might be lost! Here again, Elias proved an unreliable guide. The Dems managed to serve up the porkapalooza just fine without Franken’s assistance.

Coleman was joined by the Office of the Minnesota Attorney General in opposition to Franken’s petition. Minnesota Solicitor General Alan Gilbert conceded that the Franken/Elias arguments were “creative,” but otherwise found no merit in them. Indeed, Gilbert stated that the State took the view that the certificate of election was not to issue until the conclusion of any appeals that might follow the election contest.

I found no legal merit in Franken’s arguments. None. Zilch. Nada. I estimated the probability of their success, on a scale of 0 to 100, somewhere between 0 and 1. On Friday the Minnesota Supreme Court rejected Franken’s argument in a 24-page per curiam opinion.

Why did Franken go through this exercise? Both Franken and Elias have taken to calling Franken “Senator-elect.” Like the legal arguments presented to the Court on Franken’s petition, the transparency of Franken’s pretense and Elias’s strategy are almost laughable. St. Paul Pioneer Press reporter Rachel Stassen-Berger also quoted Franken last month regarding the “1.8 million jobs we’ve lost in the last three months since my election.”

Suffering his own peculiar variation of a common male malady, Franken has developed a bad case of premature electionation.

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