A High Risk Stategy To Bypass John Cornyn
March 30, 2009, 11:54 am
Filed under: Ian | Tags: , , ,

NRSC Chair John Cornyn is threatening to block (as in filibuster) any attempt to seat Senator-elect Al Franken, not only until after the Minnesota courts declare Franken the winner of the 2008 Minnesota Senate race, but also until after former Senator Coleman fully litigates any additional lawsuits he would like to bring in federal court.  Federal lawsuits drag on for a very long time, so if Cornyn makes good on this strategy, Minnesota could be without represenatation for years.

It occurs to me, however, that Franken’s legal team could employ a high-risk strategy to cut Cornyn off at the pass.  As I understand the law in this case, Coleman’s only non-frivilous federal law challenge to the Minnesota election is to claim that Franken’s victory is unconstitutional under Bush v. Gore—a claim which is non-frivilous only because Bush v. Gore is so poorly written that it literally can be understood to invalidate any election that has ever been conducted in the entirety of American history.

After Coleman loses his case in the Minnesota Supreme Court, Coleman will likely seek review of this decision in the United States Supreme Court.  Because Coleman raised his Bush v. Gore argument in the Minnesota Election Court, that claim can be (and probably will be) part of that cert petition.  Rather than oppose Coleman’s petition, Franken’s lawyers might consider supporting it, as this would get Coleman’s claim before the Justices in a matter of months rather than years, and—assuming all goes well at the Supreme Court level—place the nation’s highest Court’s stamp of approval on Franken’s victory.

Of course, there is no guarantee that all will go well.  Three of the five majority Justices in Bush still sit on the Court, and Chief Justice Rehnquist and Justice O’Connor’s replacements are, if anything, far less principled than their predecessors.  Nevertheless, there are some encouraging signs that the outrage following Bush has caused the Court to lose its appetite for overturning elections.  During the 2008 election cycle, a politically divided Sixth Circuit ignored two key Supreme Court precedents to hold that the Ohio Republican Party could challenge thousands of new voter registrations in Ohio.  In Brunner v. Ohio Republican Party, a unanimous decision issued just three days later, however, the Supreme Court effectively reversed this decision, rejecting the Sixth Circuit’s claim that the Ohio Republican Party is not subject to the same legal rules as everyone else.

If Franken’s lawyers are confident that the Justices will behave in Coleman v. Franken in the same principled manner that their behaved in Brunner, than it is worthwhile to get this case before the Justices as soon as possible.  Once the Supreme Court has blessed Senator-elect Franken’s victory, it will be difficult for Cornyn to sustain political support for denying Senate represenation to Minnesota.

There are, of course, any number of caveats to this idea.  The 41 GOP Senators may go ahead and filibuster anyway, setting off a constitutional duel over whether the Senate has the power to ignore the results of a duly-conducted election.  Similarly, Coleman’s lawyers can probably dream up any number of meritless new claims to bring in federal court.  Nevertheless, if there it is one thing that the Justices hate, it is when mere legislators think they can ignore a decision of the Supreme Court of the United States.  If Franken can get the Justices on his side once, he may rouse them to stiffle any future attempts to prevent him from being seated.


5 Comments so far
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You can’t just “agree” to have a case heard by the Supreme Court. They often do not take cases, even when a party does not oppose cert (I can think of a case from a few years ago, where the United States itself agreed that cert should be granted against it on a sentencing issue and the Supreme still denied cert).

As to whether agreeing to cert will cut off the litigation “in a matter of months rather than years”, what do you mean? Are you a lawyer? If so, are you familiar with federal jurisdiction? If Coleman loses in the Minnesota courts, and the Supremes DENY cert, then he has lost on all issues he did or COULD have brought in the Minnesota state courts. He CANNOT relitigate the Bush v. Gore arguments he is making right now in federal court. The state judgment will be res judicata on that. This is basic stuff. Furthermore, as I noted, any Minnesota judgment adverse to Coleman is res judicata on federal issues he COULD have raised in the state litigation. Thus, he cannot raise them in a separate action in federal court either. I cannot think of any federal issues that could not be raised in the state process. Thus, if the Supremes deny cert from the eventual appeal to the Minnesota Supreme Court, it’s all over for Coleman.

Comment by Jon

Responding briefly to “Jon”:

Yes, I am familiar with the concept of discretionary jurisdiction. The purpose of supporting Coleman’s petition is not to force the Justices to hear the case, it is to encourage them to hear the case. Believe it or not, the Justices (or at least their clerks) actually do read the documents presented to them.

Also, I am familiar with the concept of res judicata. As I said in my post, I don’t believe Coleman to have any non-frivolous arguments that he can bring in federal court. The problem in Coleman v. Franken is not that there is much risk that he could win his case, it is that he will keep the litigation live so that Cornyn will filibuster Franken. That said, my understanding is the the Minnesota courts place a very high burden of proof on Coleman’s claims, including his Bush v. Gore claim, so I’m not entirely sure that the resolution of Coleman’s state claims is res judicate with respect to his federal claims. The legal question of “does the Minnesota election violation Bush?” is different from “does the Minnesota election violation Bush under a standard that is unusually favorable to Franken?”

Were I not in the middle of something and therefore inclined to write quickly, I would have matched your rude tone with more snarkiness.

Comment by Ian

I’m not entirely sure that the resolution of Coleman’s state claims is res judicate with respect to his federal claims. The legal question of “does the Minnesota election violation Bush?” is different from “does the Minnesota election violation Bush under a standard that is unusually favorable to Franken?”

You may not be entirely sure, but I am. If you litigate a federal issue in state court — you cannot relitigate it in federal court (with certain exceptions not applicable, such as habeas corpus). Period. If you think the state court got it wrong, and is apply the wrong burden of proof to a federal constitutional claim, you need to raise that issue in state court. Theory is that the state courts are just as competent as the lower federal courts down the street to adjudicate the issue. And both ultimately answer to the same tribunal on issues of federal law — the Supreme Court of the United States.

Comment by Jon

Jon, you are overstating the doctrine. Res Judicata requires a final judgment on the merits in a previous suit which involved the same cause of action as the subsequent suit. If the Minnesota state courts toss Coleman’s claim on the grounds that he did not overcome the Contestee-favorable standard that exists under state law, a federal court could determine that they have not reached a final judgment on the merits of whether the election is valid under Bush v. Gore.

That said, I reiterate my earlier point: Whether Coleman can win his claim in federal court is irrelevant to whether Cornyn will filibuster Franken.

Comment by Ian

If Franken were to follow the course you suggest, wouldn’t he be conceding the right of SCOTUS to hear the appeal, and disrespecting the state of MN’s right to decide for itself who wins their elections?

Sounds like bad politics to me. Also bad law, I think (although IANAL). Doesn’t Article 1, Section 5 mean anything? Cornyn’s got the right idea, I think (since the Senate is the final judge of its elections), but doesn’t this then devolve to a rules challenge if Franken comes to the Senate duly certified?

Comment by Ralph Kramden

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