Becoming a U.S. Senator Requires More Than Getting Elected

What does it take to gain admission into what has been called the "World's Most Exclusive Club"? As Al Franken found out, just getting the most votes does not automatically open the doors to the United States Senate. On March 6, 2009, the Minnesota Supreme Court refused to compel the state's governor and secretary of state to certify Franken to the Senate as the winner of the election.

Roland Burris had trouble getting into the Senate to fill President-Elect Barack Obama's seat in January 2009. Following allegations that Illinois Governor Rod Blagojevich had offered the seat for sale, Senate Democrats initially refused to seat Burris, Blagojevich's appointee, as Illinois' new senator. The senators reconsidered and later allowed Burris to join their ranks.

Franken's experience shows that winning the election can be just the first step to entering the Senate chamber and senators from his own party temporarily blocked Burris from taking his seat. So what procedures are required to actually become a member of the U.S. Senate and who decides whether an individual is admitted to the exclusive, 100-member "upper house" of Congress?

The U.S. Constitution gives states the right to administer the elections to choose their senators. Article I, Section 4 provides, "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof...." But the next clause gives the U.S. Congress authority to modify the states' election procedures. And, as Franken has learned since November 2008, a state's election procedures can be cumbersome and cause delay.

Franken left an entertainment career to run for U.S. Senate in Minnesota against incumbent Norm Coleman. Coleman appeared to have retained his seat in the November 2008 election by 215 votes. However, the slim margin of victory automatically triggered a recount, after which Franken appeared to prevail by 225 votes. Coleman filed a lawsuit in state district court on January 6, 2009 challenging those election results. Minnesota had only one senator when the new term began on January 3, 2009 and remains without that legislator.

Minnesota law provides that, in an election for U.S. Senate, the governor and secretary of state are to issue a certificate of election determining the winning candidate and forward it to the secretary of the U.S. Senate. When those state officials refused to issue the certificate until Coleman's lawsuit was concluded, Franken filed a petition to the Minnesota Supreme Court in an effort to require issuance of the certificate declaring him the winner.

The state supreme court ruled against Franken. It found that Minnesota law required the certificate to be withheld until Coleman's lawsuit contesting the vote count was concluded. But, more interestingly, the court discussed the limited role of that litigation in making the ultimate decision of who the junior senator from Minnesota would be.

Article I, Section 5 of the U.S. Constitution makes the Senate "the judge of the elections, returns and qualifications of its own members...." Accordingly, the Minnesota Supreme Court concluded, the Senate could install Franken even without the certificate of election from the state's governor and secretary of state. Further, the outcome of Coleman's lawsuit will not necessarily resolve who the new Minnesota senator will be. Although it will most likely follow the state court's judgment of which candidate received the most votes, the Constitution gives the U.S. Senate the final word on whether Coleman or Franken will join that house of Congress.

Sources:

Oliphant, "Roland Burris Sworn In As Illinois' Junior Senator," http://www.chicagotribune.com/news/local/chi-burris-16-jan16,0,7778033.story

U.S. Constitution, Art. I, available at http://www.law.cornell.edu/constitution/constitution.table.html#articlei

Opinion (per curiam), Franken v. Pawlenty, et al., Cause No. A09-64 (Minn. Sup. Ct. March 6, 2009), available at http://www.courts.state.mn.us/?page=230

Roudebush v. Hartke, 405 U.S. 15 (1972)