Minnesota Governor Tim Pawlenty has been making the rounds on cable news today, no doubt working to raise in his profile for 2012 in the wake of his decision not to run for re-election in 2010. During these interviews, he has suggested that he would not delay the seating of Minnesota's next Senator. Election law experts appear unanimous that the Minnesota Supreme Court will affirm the victory of Senator-elect Al Franken. The reason I don't trust Pawlenty is that he is leaving himself too much wiggle room. Watch the exchange in the video below, from Pawlenty's appearance today on Fox News:
You know, Neil, if the Minnesota Supreme Court says, 'You sign the certificate' -- and there's not an appeal or some other contrary direction from a federal court -- you know, that's my duty.
In a series of email exchanges with Pawlenty's spokester, Brian McClung, I sought to clarify what level of discretion the guv was claiming over the issuance of the certificate. At first, McClung pointed out that there is no deadline in the law for the issuance of the certificate after the conclusion of the Contest Court process and state Supreme Court appeal. It sounded as if Pawlenty was claiming the right to indefinitely postpone the certificate.
Superficially, Pawlenty is telling us not to worry, that he's happy to sign on the dotted line. But he also throws in the caveat "and there's not an appeal or some other contrary direction from a federal court" which makes me wonder.
Having watched the state Supreme Court's proceedings on June 1 when they heard oral arguments from both campaigns, I have a very positive impression of the Court and of the Justices' attention to detail. Expecting that they affirm Senator-elect Franken's victory, it would be proper of them to include an order for Pawlenty, in his role as Governor, to prepare and sign an election certificate. But, given that his staff has noted that there's no time requirement attached, Pawlenty could very easily slow walk the certificate while Republican Norm Coleman seeks a stay or an injunction on the certificate from a federal court in advance of a federal appeal. University of Minnesota's Professor Larry Jacobs explains:
But Jacobs still sees wiggle room here. "Signing it -- and how quickly you sign it -- those are two different things," Jacobs explained. "If Norm indicates that he's going to be filing in federal court, the Governor may just say, 'you know, I am gonna sign it, I'm just waiting to hear from my legal counsel that this is appropriate.'"
Further, if the state Supreme Court affirms Senator-elect Franken's victory but doesn't add in the explicit order to Pawlenty to prepare and sign the election certificate, then who knows!? At the very least, Pawlenty's reassuring words are not all that reassuring, nor should they be given the wiggle room those words leave for Pawlenty. Of course, if Pawlenty deliberately obstructs and delays after the state Supreme Court rules in Senator-elect Franken's favor, the U.S. Senate is still empowered to seat Senator-elect Franken (and Pawlenty's delay would likely give Senate Majority Leader Harry Reid the political impetus to move forward with Senator-elect Franken's seating), but that move still faces the threat of filibuster from Republicans. If that were to happen, Democrats would likely need a couple of Republicans to buck their Party in the name of supporting the democratic process. Hopefully this issue will be moot, but it's never too early for Democrats to reach out to more responsible Republicans like Olympia Snowe and Dick Lugar about their willingness to support Senator-elect Franken's seating should the eventuality arise.
