They say that politics makes for strange bedfellows, and no where is that more apparent than seeing Bush v. Gore cited in support of one of Al Franken’s positions in his brief asking the Minnesota Supreme Court to mandate the immediate certification of the results of the recount in the state’s U.S. Senate race. If the certification is granted, Franken will go to Washington to take a seat in the Senate on a provisional basis pending the results of the election contest.
Franken essentially makes a “time is of the essence” argument that the state has no right to interfere with the important business of federal government by failing to provide a second senator when the Senate convened in January. The state cannot impose a drawn-out contest period in breach of “federal deadlines” for the state to provide a senator.
In Bush v. Gore, the Franken brief says, the U.S. Supreme Court “found that while states enjoyed substantial leeway in structuring their process for participating ‘in the federal election process, … they were obliged to have a process in place, one meeting ‘rudimentary requirements of equal treatment and fundemental fairness,’ … that could meet the federal calendar. As here, ‘[t]hat date is upon us.'”
It’s obvious that Franken’s lawyers feel a little conflicted about citing with approval a case that is so unpopular in Democratic circles. After the above quote, the brief sheepishly goes on to note that the case’s “self-limited” holding with respect to equal protection is “no doubt controversial.”
“Here, the effect on the federal constitutional calendar and the seating of the federal official is much more dramatic, and yet Franken requests a much narrower remedy — the limited state election contest can proceed, but breach of the federal deadlines must be remedied as soon as possible by issuance of the provisional certificate,” Franken’s brief says.
Thus, Franken’s lawyers attempt the difficult acrobatic trick of both relying on Bush v. Gore and simultaneously trying to distinguish it from their case. It’s a high-wire act to be sure, but one they have little choice but to engage in given the dearth of caselaw in the area.
File this one under, “sleeping with the enemy.”
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