Some time later this month or early in the next one, our long national nightmare will come to an end: Al Franken will be seated as U.S. Senator from Minnesota. That, at least, would seem to be the upshot from yesterday's decision by a three-judge panel in Minneosta to reconsider, at most, 400 ballots from Franken's contested election over Norm Coleman.
From here, what's likely to occur is the following: Next week, the three-judge panel will review those 400 ballots, after which Franken will almost certaily maintain his lead over Coleman, which currently stands at 225 votes; then Coleman will appeal the panel's ruling to the Minnesota Supreme Court, which will agree to hear the appeal on an expedited basis; and then, in late April or early May, the state supreme court will deny Coleman's appeal and order Minnesota governor Tim Pawlenty to certify Franken's election. It's possible Coleman will then try to get a federal court to issue an injunction barring Pawlenty from certifying Franken's election, but, for various legal reasons, it's very doubtful he'll be able to find one; similarly, it's doubtful he'll be able to file a whole new suit in a federal court, as Texas senator John Cornyn is encouraging him to do, since, with a few limited exceptions (such as death penatly cases), you can't relitigate a case in the federal courts after it's already been decided in the state courts.
Even if Coleman appeals the Minnesota Supreme Court's ruling to the U.S. Supreme Court--which he is entitled to do--it's doubtful the highest court in the land would hear his case. That's because, with the exception of Bush v. Gore and a 1972 case brought by a defeated Indiana Senate candidate named Roudebush, the Supremes don't like to muck around with electoral recounts, and Coleman's case doesn't appear to raise any compelling constitutional issues. So, in other words, once the Minnesota Supreme Court rules in Franken's favor, as almost everyone expects it will, the game will be up and Mr. Franken will go to Washington. And not only will Minnesota residents get their second vote in the Senate, but Democrats will get their 59th, just one short of the magical 60 needed to prevent filibusters.
With that outcome now seemingly preordained, the question is: Did it really have to take this long? Believe it or not, I think the answer is probably yes. And for that, you can blame two people: Roland Burris and the geniuses who wrote Minnesota's election laws.
First, Burris. When Senate Democrats were trying to figure out a way to avoid seating him after Blago selected him as Obama's replacement last January, they focused on one thing: his certificate of appointment, or lack thereof. Because only Blago had signed the document--and not Illinois's Secretary of State Jesse White--the secretary of the senate, presumably working at the behest of Harry Reid and Dick Durbin, refused to seat him on January 5, citing Senate Rule 2, which requires that the certificate be signed by the state's governor and its secretary of state. But after the Illinois Supreme Court ruled that Burris didn't need White's signature for his certificate of appointment to be valid--only Blago's--the Senate Dems relented and agreed to seat him on January 12. In other words, the matter of whether or not to seat Burris hinged on his certificate of appointment.
Which brings us to the people who wrote Minnesota's election laws. Minnesota is one of the only states in which a certificate of election isn't issued until any and all legal challenges to that election are dealt with. (For instance, although Mary Landrieu's election victory in Louisiana's 1996 U.S. Senate race was challenged in the state courts by her opponent, Louisiana still gave her an election certificate--which is what allowed Senate Dems to seat her provisionally, until her opponents legal challenge was resolved.) So, even though Minnesota's state canvassing board certified that Franken led Coleman by 225 votes on January 5, Coleman's legal challenge prevented Franken, under Minnesota election law, from actually getting an election certificate. And with Senate Democrats at that very moment refusing to seat Burris because they said he lacked a valid certificate, there was no way, according to a senior Senate Democratic aide, that they could realistically try to seat Franken, who also lacked one, without Republicans filibustering, and not illegitimately. Hence the delay while we waited for Coleman to exhaust his legal challenges.
Of course, there is one final potential stumbling block to Franken getting that certificate of election: Tim Pawlenty. What happens if, even after the Minnesota Supreme Court rules in Franken's favor, the state's Republican governor refuses to sign the certificate. It's doubtful Pawlenty would do that--he does have a gubernatorial reelection coming up in 2010, not to mention a potential presidential bid in 2012--but, just in case he does hesitate, you're already seeing Democrats turn up the pressure on him with arguments that Minnesota is suffering without two voices in the Senate. And that's an argument you don't need a law degree to understand.