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December 29, 2008

Could Senate seat Franken before he's certified as winner?

With GOP Sen. Norm Coleman’s campaign signaling it will contest the results of the Minnesota Senate race , it appears that Minnesota will be without one of its two senators as the 111th Congress convenes next month.

The Canvassing Board is prepared to declare a winner by January 6—the same day the Senate is sworn in. But Coleman’s campaign has said the vote can’t be be certified if there's a post-election contest..

With the Senate hesitant to involve itself in the race, it looks like Coleman’s seat will remain vacant until the election is officially resolved.

But the state's sitting senator, Democrat Amy Klobuchar, is now calling for the Senate to provisionally seat the Canvassing Board’s declared winner, until the results are officially certified.  Democrat Al Franken currently leads Coleman by 46 votes -- with as many as 1,400 absentee ballots left to count.

From the Minneapolis Star-Tribune:

Regarding the length of a vacancy, Klobuchar said she believes there is still "a good possibility" that the Canvassing Board will finish up by Jan. 6 and even a better chance that Minnesota will have a new senator a week or so later.

"If the Canvassing Board declares a winner, that should be our senator," she said, even if a court challenge were to follow. "[The Senate] could seat a senator pending the litigation."

Her view of a possible provisional winner is shared by Fred Morrison, a professor of constitutional law at the University of Minnesota. Morrison said the Senate could tentatively seat Franken, for example, if he comes out of the Canvassing Board process with a lead that would require Coleman to prevail in court on nearly all of his disputed claims to win.

"The Senate could say ... we will seat Franken pending the final result," he said.