Image: Attorney for Al Franken
Ben Garvin  /  AP
Marc Elias, center, an attorney for Al Franken, argues in front of the Minnesota Supreme Court that Gov. Tim Pawlenty and Secretary of State Mark Ritchie are usurping federal authority by refusing to issue an election certificate during a hearing on Thursday.
updated 2/5/2009 2:20:37 PM ET 2009-02-05T19:20:37

Lawyers for Democrat Al Franken told Minnesota's highest court Thursday that he should be certified as the winner of his tight Senate race with Republican Norm Coleman without waiting for the outcome of his rival's legal challenge.

The Minnesota Supreme Court heard oral arguments on Franken's request for a certificate of election now, at least on an interim basis, so that Minnesota's empty seat can be filled without waiting the months it may take for the courts to resolve Coleman's separate lawsuit over the recount, which gave Franken a 225-vote advantage.

The justices took the case under advisement and didn't say when they might rule, but their many questions suggested they were skeptical of Franken's arguments.

GOP Gov. Tim Pawlenty and Democratic Secretary of State Mark Ritchie have rejected Franken's demand for the certificate, which he would need under Senate rules to take the seat Coleman had to vacate early last month as the new Congress convened.

Franken lawyer Marc Elias told the court Thursday that citizens are being deprived of their right to have two senators as Congress decides critical questions. He suggested that Minnesota was obligated under the Constitution and federal statutes to have two senators in place when Congress convened early last month.

"The nation faces issues of war and peace, issues of economic crisis. ... For want of a vote, an economic stimulus package might be lost," Elias said.

But attorneys for Coleman and the state countered that state law clearly says the governor and secretary of state can't issue a certificate of election until all court challenges are resolved. And they said that contrary to the Franken camp's claims, there's no legal deadline for that.

"Minnesota has made a decision that when it comes to deciding who has won, it's important to get it right," said Jim Langdon, a lawyer for Coleman.

Justice Christopher Dietzen questioned whether the Supreme Court had the authority to order Pawlenty and Ritchie to issue a certificate. Justice Paul Anderson said he didn't see how the procedures the state is following undercut the Senate's independent authority under the Constitution to decide who it will seat.

Lawyers for Coleman and the state point to a provision in the law that says that in the case of a "contest" — a lawsuit — over a recount, "an election certificate shall not be issued until a court of proper jurisdiction has finally determined the contest." They contend the special three-judge panel that began hearing Coleman's lawsuit Jan. 26 is that proper court.

Franken's lawyers point to a different section of Minnesota election law specific to U.S. Senate races that they say shows a certificate should be issued now and could be revoked if Coleman wins his court case. It says, "no certificate of election shall be prepared or delivered until after the recount is completed. In the case of a contest, the court may invalidate and revoke the certificate."

Chief Justice Eric Magnuson and Justice G. Barry Anderson recused themselves. Both men sat on the State Canvassing Board that ruled on disputed ballots and certified the recount numbers.

Coleman's lawsuit continued Thursday in a separate proceeding. He is asking the three-judge panel to count thousands of absentee ballots that may have been rejected improperly, in hopes of overturning Franken's lead.

Copyright 2009 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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