Al Franken has petitioned the Minnesota Supreme Court for an order directing the Governor and Secretary of State to prepare and countersign a certificate of election and deliver the same to the President of the United States Senate. The Governor and the Secretary have refused; they contend that, under
Franken acknowledges that
Franken is somewhat vague as to how the absence of a certificate has “interfered” with the Senate’s ability to seat him. He does not actually say that the Senate is prohibited from seating him without a certificate (probably because he wants to preserve his option to argue the opposite to the Senate at a later time). If there is such a prohibition, it can only exist because of Senate rules. It would be this self-imposed rule, not
As suggested by the Illinois Supreme Court’s recent decision in the Burris case, it is in fact doubtful that Senate rules make the absence of a certificate an absolute bar to considering whether to seat a Senator. If Senate rules did establish an absolute bar, there might be a constitutional objection to such rules as interfering with the Senate’s power to judge elections. It is difficult to see, however, how this would impose upon
If refusing to issue a certificate to Franken interferes with the Senate’s ability to seat him, it would have to be true that issuing such a certificate would interfere with the Senate’s ability to seat Coleman. Yet the Senate clearly has the constitutional authority to judge the election and choose to seat either candidate, either now or at a later time. In Roudebush v. Hartke, 405 U.S. 15 (1972), the winner of the initial count in a Senate race (Hartke) received a certificate of election from the State of Indiana and was provisionally seated by the Senate. He then sought a federal court injunction to stop
It is true that a State’s verification of the accuracy of election results pursuant to its Art. I, § 4, powers is not totally separable from the Senate’s power to judge elections and returns. But a recount can be said to “usurp” the Senate’s function only if it frustrates the Senate’s ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.