Friday, April 10, 2009

TPaw is not the Decider

Alternate title: Norm on Death Row

Governor Pepsodent, the Eyeore with a mullet, shakes his head ruefully and tells Rachel Maddow that the case of Coleman against Franken is just so complicated and deserves Pepsodent’s caution in issuing an election certificate. Why, there may be federal claims and equal protection issues that haven’t even been thought of yet! You can watch Pepsodent and Maddow here:

Maddow, one of the brightest people in broadcasting, makes a grievous error when she describes Pawlenty as having a “determinative say” in the Coleman against Franken saga. Wrong, Rachel, Pepsodent’s role here is merely ministerial; he is a functionary, a flak, in the matter. Don’t flatter the party apparatchik.

Here’s the procedural posture, as lawyers like to say: within days, the three judge panel, sitting as a trial court, will issue a decision in favor of Franken. We don’t know at present whether that decision will include an order to Pepsodent and to Secretary of State Mark Ritchie to issue an election certificate. Spot hopes that Mark Elias & Co. have at least asked for such an order in their proposed findings and order to be issued by the court.

But let’s assume that the matter is appealed to the Minnesota Supreme Court.

Boy, that’s a risky assumption, Spot.

Don’t be impertinent, grasshopper. Let us further assume that the Minnesota Supreme Court affirms the trial court. Clearly, at that point, Franken’s lawyers should be asking that the judgment of the Supremes include a directive to Pepsodent and Ritchie to issue the certificate to Franken.

It is (or will be shortly) a decision of the highest court in Minnesota on a matter that is judicial, not administrative. Coleman started the lawsuit because he was unhappy with the administrative (recount) outcome. He’s the one who threw his lot in with the guys and gals in black robes. Live by the black robes; die by the black robes. This is, in no way, shape, or form, Pepsodent’s issue any more. He must obey the Minnesota Supreme Court or go down in the record books as a scofflaw: lawless and faithless in the discharge of his duties as governor. It would be noted in the Minnesota history class taken by every middle schooler in the state.

Pepsodent would also risk a contempt citation for disobeying the Minnesota Supreme Court – and Elias will doubtless ask for an order to show cause if the certificate is not forthcoming.

But what about the federal stuff, Spotty?

First of all, let’s be clear about something. Pepsodent makes it sound like only the federal courts can handle matters of equal protection. The equal protection issue was raised in the trial court in Coleman v. Franken, and it will be addressed in the Minnesota Supreme Court, too.

If Coleman loses in the Supreme Court of Minnesota, and he thinks he’s got a federal remedy, let him go and apply for it. If he wants a stay of execution pending the outcome of litigating in federal court, let him apply there for the stay, too.

In fact, let’s analogize to the death row appeal a little more – it’s a great metaphor, isn’t it boys and girls? Put Pepsodent in this situation: he’s the governor in a death penalty state, and the state supreme court has just denied the appeal of the defendant. Does Pepsodent defer issuing a death warrant because the defendant might have some federal claims to litigate? Don’ be ridiculous. He schedules the needle ASAP.

Update: Once again, the incomparable Tild creates the perfect graphic to illustrate Norm on Death Row. She calls it Losers with Dirty Faces after the 1938 movie Angels with Dirty Faces. You can see Tild’s original post here.


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