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Franken makes argument for election ticket

Solicitor General Alan Gilbert, center, chats Thursday with Bert Black, counsel to the secretary of state's office, shortly before the start of a hearing at the Minnesota Supreme Court in St. Paul. Gilbert argued that state law does not allow Al Franken to be issued a provisional election certificate. Pool photo by Ben Garvin, Pioneer Press/Minnesota State Capitol Bureau

ST. PAUL -- Al Franken awaits word whether he will get a ticket to the U.S. Senate while he and Norm Coleman wait to learn which one the voters picked as their next senator.

The Minnesota Sup-reme Court is expected to soon decide whether to issue Franken's ticket, in the form of an election certificate, but both candidates will not know for weeks who won the election.

Franken's campaign argued before the high court Thursday at the Minnesota Capitol that the Democrat should be given a signed election certificate, even though the Senate election results are on trial in a courtroom across the street.

Minnesota is ignoring U.S. Senate rules and lacks its full representation in Congress if Franken is not given the signed document, his attorney told the justices.

"We are here, in short, because the governor and secretary of state have failed to fulfill their legal duties under the constitution, under federal law and under state law," attorney Marc Elias said.

Elias said Franken is "entitled" to the certificate because the state Canvassing Board approved election results last month showing Franken ended the recount with a 225-vote victory.

Franken wants Republican Gov. Tim Pawlenty and Democratic Secretary of State Mark Ritchie to sign an election certificate that could allow him to be seated in the Senate before Coleman's lawsuit challenging the election result is resolved.

Justices listening to the oral argument grilled Elias with questions about whether state law even allows an election certificate to be issued before the lawsuit plays out.

"It seems to me that this court lacks the authority to issue a provisional certificate of election," Justice Christopher Dietzen said.

Coleman's attorneys oppose the Franken request and a state attorney said Franken is asking for something that legally cannot be done.

Solicitor General Alan Gilbert said state law says that in the case of an election contest, no certificate can be issued until there is a final judicial determination, which could include legal appeals.

"That could not be more clear," Gilbert said. "It does not provide for provisional certificate. It provides for no certificate."

Gilbert said Minnesota's law does not interfere with the Senate's constitutional authority to seat its members.

Pawlenty and Ritchie rejected Franken's early-January request for a signed election certificate. Franken then filed the Supreme Court case.

Elias said the request is urgent because the Senate is faced with major policy issues, including passage of an economic stimulus package.