By Scott Wente
St. Paul Capitol Bureau
ST. PAUL - Minnesota Supreme Court justices asked why they should order that Al Franken be given an election certificate before the U.S. Senate race is resolved.
In a hearing this morning, the high court strongly questioned whether state law allows for an election certificate to be issued while the election is still in question.
Franken, who ended the statewide recount with a 225-vote victory over Norm Coleman, wants the court to order that Gov. Tim Pawlenty and Secretary of State Mark Ritchie sign an election certificate for him, even as Coleman's lawsuit over the recount results plays out.
"If a recount is part of the manner of holding an election, why isn't an election contest part of the manner of holding the election?" Associate Justice Lorie Gildea asked.
Franken attorney Marc Elias argued that Minnesota cannot decide to opt out of federal requirements that the state have two sitting senators. He also argued that there is urgency because Minnesota is only represented by one senator - Democrat Amy Klobuchar - as Congress weighs monumental issues such as an economic stimulus package and international crises.
Coleman attorney Jim Langdon said Minnesota law sets out a two-step process for resolving elections as close as the Senate race. It includes an administrative recount and the opportunity for an election contest, or lawsuit.
Langdon said "there are legitimate, serious issues to be determined by the contest court."
Associate Justice Christopher Dietzen asked whether the state believes a provisional election certificate can be issued.
"No, it does not," said Solicitor General Alan Gilbert, representing Pawlenty and Ritchie in the hearing.
The Minnesota attorney general's office backed the decision by Pawlenty and Ritchie last month to refuse Franken's request for an election certificate when the state Canvassing Board certified the recount tally.
Gilbert said Minnesota's law does not interfere with the Senate's constitutional authority to seat its members.
Four Supreme Court justices heard the oral arguments campaigns, but five will decide the case. Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson are not involved in the case. They sat on the state Canvassing Board that certified the election result now being challenged.
Associate Justice Alan Page, who led the hearing, said the court will consider the arguments and "a ruling will be forthcoming."
The trial for Coleman's election lawsuit resumed after the Supreme Court hearing.