Will he stay or will he go?

The latest rumor going around:  The Minnesota Supreme Court will rule this coming Thursday (July 2), it will rule for Franken, and the ruling will direct Tim Pawlenty to sign the election certificate without delay. 

Why July 2?  Speculation is that it’s because it’s the last day of the session for both the Minnesota and United States Supreme Courts.  If you’ve been following the case closely, you know that Norm Coleman is expected to be running to Samuel Alito, the USSC judge tasked with overseeing the Eighth Circuit Court (which covers Minnesota), for a stay of the Minnesota Supreme Court’s decision.  That might be a bit harder to do if the US Supreme Court adjourns before the Minnesota Supreme Court — which is highly likely, if for no other reason than that the Minnesota Supreme Court is one time zone behind that of the USSC.

Even if Norm was able to find Strip-Search Sammy before he took off for the Fourth of July holiday, whether Alito could issue a stay is an open question.  TPM commenter "Minnesota Slim" seems to think it’s a certainty – and also mentions that Coleman has ten days to file a petition to the Minnesota Supreme Court for a rehearing (which will be summarily denied) as well as attempt to get Alito to issue a stay.  On the other hand, MinnPost’s Eric Black cites Rick Hasen’s Election Law Blog to argue that getting a stay would be very difficult for Coleman:

As exhibit A, Hasen linked to the short unanimous order the U.S. Supremes had just issued denying a stay in the Chrysler bankruptcy lawsuit and laying out what it takes to get a stay. Translating from that order to the possible Coleman appeal, to justify the issuance of an order blocking Minnesota from certifying Franken the winner of the election, the majority of the court would have to find all of these elements:

  1. A "reasonable probability" that at least four of the justices will decide to hear the appeal (grant certiorari);
  2. A "fair prospect" that if the court takes the case, it will overturn the MN Supremes;
  3. A "likelihood" that "irreparable harm" will ensue if Franken gets his certificate and (to offset the harm done to Coleman)
  4. "Consideration" of the harm done to Franken if he is delayed for months more from getting his certificate and also
  5. "Consideration" of the interests of the general public of Minnesota in having its full representaiton in the Senate.

That’s a tall hill to climb (and even steeper if the MN Supremes issue a well-written unanimous opinion). But without such a five-part finding, the Supremes will refuse the request for a stay, as they did in the Chrysler case, and it will be very hard for Gov. Pawlenty to justify much delay in signing a certificate.

Could everything finally be winding down this coming week? We’ll find out.