by Ray Fleetwood

With the Minnesota Supreme Court set, on June 1st, to hear Oral Argument in Norm Coleman's appeal of the lower court ruling that Al Franken has won the US Senate race in Minnesota: if, as expected, Norm Coleman appeals to the Supreme Court of the United States (SCOTUS), does SCOTUS have jurisdiction?

I ask this because Article I, Section 5, clause 1 says: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,...

Strict constructionism would say that judges should look at what the law says and not what it should be. I believe the language is pretty clear. The US Senate is the final authority concerning US Senate elections, not SCOTUS.

I would very much like to hear the views of Mr. Berg-Andersson on this matter.

Thank you,

Ray Fleetwood
Private citizen and reader of The Green Papers
rayfleet at charter dot net

Mr. Berg-Andersson responds:

I'll start off with two humorous vignettes, both of which will well illustrate my initial points..

First: A man walks into the office of a well-respected attorney and, when he gets a chance to meet with the barrister, tells him "My neighbor has this vicious dog with a propensity for biting people; that beast is a threat to the whole neighborhood. Can I sue my neighbor?"; the attorney asks, "Did the dog ever attack you?" The man replies "No"; to which the lawyer then- rather surprisingly- says, "Of course you can sue him!". The man's eyes light up with barely concealed glee which only lasts fleetingly, however, as the attorney next tells him "But, obviously, you'll never win in court", to which the man responds, rather indignantly, "I thought you just said I could sue him!"

Second: Two friends are sitting next to each other on a city bus, one friend telling the other about some perceived injustice perpetrated on him by somebody- a boss, a landlord, a shopkeeper: it matters little. Eventually, the indignant one of the two declaims: "I'll take this all the way to the Supreme Court if I have to!" To which an attorney sitting nearby- and who could not help but overhear their conversation- chimes in with "But only if they happen to grant Certiorari!"

The first story illustrates the difference between the everyday meaning of the verb "to sue" and the use of "suit at law" as a term of art by lawyers. When Joe Everyman-Citizen, almost always not an attorney, says "I should sue!", the prospect of winning the lawsuit is understood as if part and parcel of the entire process (no one declares- other than in a humorous vein- they should sue someone if they don't also honestly think they can actually win!) but, to a lawyer, there is a big difference between filing a lawsuit on behalf of a client and actually proving that client's case before a trial judge or jury (let alone appealing should the plaintiff lose in court!)

The second story- also playing on a popular expression here in the States- illustrates the fact that, in the American legal system, one generally is entitled to one fair trial followed by, where necessary (as well as where desirable), one appeal as of right (I often joke- as regards the popular expression: "I deserve my day in court"- that one actually, theoretically, deserves two "days in court": the trial itself and the hearing re: a potential appeal)-- but that's it! Anything beyond this (a further appeal, a new trial, etc.) is pretty much solely at the behest, where not also sufferance, of the court(s) above.

(Certiorari, by the way, is the writ one formally asks for from a court above an intermediate appellate court that has already decided the appeal as of right: it is the usual manner, nowadays, through which a court of Last Resort- such as the highest court in a State or, obviously, the United States Supreme Court- hears a further appeal. The Latin simply means "to be informed"- indeed, a decent, albeit free, translation [one which includes the same root word in English as found in the Latin] might well be "to be made certain of"; the superior court, via this writ, basically demands that the court below produce the entire record of the case for the superior court's review...

but, of course, just because one requests a writ of Certiorari doesn't at all mean this writ is going to actually be granted! In fact, rather few cases get appealed "all the way to the Supreme Court" [else the Supreme Court would be swamped and, thereby, unable to conduct its business for the resultant logjam].)

In a nutshell, then, there are the following two quick answers to Mr. Fleetwood's query:

1. Senator Coleman (and, yes, whether he will prove to be an incumbent re-elected to his seat or no, Norm Coleman is still entitled to be so called, as all former Senators are- as a matter of courtesy- addressed as "Senator") may bring his case to the U.S. Supreme Court, should he lose in the Minnesota Supreme Court-- but this, of course, doesn't mean he would actually prevail.

2. The U.S. Supreme Court may, if it so desires (or, in reality, if 6 of its 9 Justices might so desire- for 4 in conference are necessary to agree to hear oral argument on any case and, thus, "grant cert" [as the granting of a writ of Certiorari is known in legal shorthand]), refuse to hear Senator Coleman's potential appeal to it in any event.

But I get the sneaking suspicion that Mr. Fleetwood was hoping for at least a bit more "meat" on this particular "bone" and I will- happily, in fact- now provide it to him.

Three things, then, to note here:

1. Mr. Fleetwood is correct in his reading of the United States Constitution, which specifically grants to each house of Congress the power to "be the Judge of the Elections, Returns and Qualifications of its own Members".

But there is something of a conflict here and that leads me to

2. The United States Constitution also says- in its Article III, Section 2, clause 1- that "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" (keep in mind that- per Article VI, clause 2 of the document- these very entities [Constitution, Laws and Treaties] together make up "the supreme Law of the Land" [and my already having expounded upon this last in quite a few of my writings so far for this website have long been getting me in dutch with what I like to call "the black helicopter crowd" who do not much care for American judges utilizing aspects of International Law in many of their decisions]).

Yes, each house of Congress does have the power to determine, where necessary, the result of an election to itself... but wouldn't the use of that same power- one granted by the Constitution itself, after all- be the potential subject of a case "arising under the Constitution"? (Thus, couldn't Senator Coleman- even were the United States Senate to seat, and swear in, Mr. Franken [and, by the way, he is not "Senator Franken" unless and until he formally takes the seat; thus, he is not "Senator Franken" yet!]- conceivably bring his case before the U.S. Supreme Court via his possibly claiming an abuse of the power granted the Senate via Art.I, Sec. 5, clause 1?-- though, if I had to bet [no, Delaware does not permit legal gambling on the outcomes of cases on the SCOTUS docket ;-)], I would think that, in such a case, the High Court would see this as one of those "political questions"- one which, in the opinion of the Judiciary, would best be left to what courts refer to as "the political branches": the Legislative and Executive- and, therefore, they would not, in the end, "grant cert".)

Even aside from this, the US Supreme Court has long claimed the authority to review cases decided in the highest courts of the States of the Union where said courts below have based said decisions on the Federal Constitution (on the grounds that, surely, what a State court might say about the Federal Constitution so clearly involves "a Case... arising under [the U.S.] Constitution"); thus, yes, Senator Coleman would have good reason to appeal a decision of the Minnesota Supreme Court respecting the outcome of a Federal election to SCOTUS (but, again, he might well see what would be his last possible appeal fail on those very same "political question" grounds I noted above).

And this now brings me to

3. In the end, the outcome of any election- Federal or no- is political by very definition (it's an election, ferGawdsake!); and it is the Democratic Party- that of Mr. Franken- which currently has the votes in the Senate to seat him in any event (rather obviously: a Party line vote in the Senate on the matter of seating Al Franken would not be at all favorable to Senator Coleman).

When they might do so is also a "political question", however (for, if they wished, the Senate Democratic leadership could move to seat Al Franken now- if we were to accept the strictest construction of Art. I, Sec. 5, clause 1). The Democrats in the US Senate are simply waiting for the judicial process to play itself out so that they can, at the end of the process, then say "we didn't at all interfere with the adjudication of this election dispute"-- and the Republicans will thereafter claim nothing but interference, where not also indifference, on the part of the other Major Party.

And it would be the same were the roles of each Major Party reversed!

It's all very simple, really: Al Franken will eventually be sworn in as the junior United States Senator from Minnesota (I can so opine if only because I know how to count the members of each Party in the Senate of the current 111th Congress). The Democrats will end up saying that Al Franken was quite fairly elected to the post- whether he was or not; while the Republicans will, at the same time, say that Norm Coleman was most wrongfully deprived of a Senate seat to which he would otherwise be entitled- whether he was or not. Each Party will, of course, largely be "preaching to the choir", while these respective "choirs" (not only within Minnesota, but also well beyond that State's borders) will contribute quite mightily- in time, where not money- to the Party of their choice: each driven, at least in part, by memories of this particular Senate election to win the next one.

Constitutional language, as well as associated legal Hermeneutics, aside: resolving a disputed election- even where one resorts to the Judiciary- is ever a "political question"!