Although (so far) hypothetical, I still think this is appropriate for GQ. Suppose the Supreme Court of MN rules for Franken and the governor simply refuses to sign the writ of election. You would think that the next move would be for Franken to ask for a writ on mandamus. But the outcome of Marbury vs. Madison, we all know, is that a court cannot issue such a writ against a member of the executive. Now this US constitutional issue does not apply to states that have their own constitutions, but suppose the MN constitution is based on the same sort of separation of powers as the US government. Then the Marbury vs. Madison case, while not a binding precedent is nonetheless a precedent.
Is there any remedy if this not-at-all-unlikely state of affairs actually comes to pass?
First of all, you may want to check the MN Constitution and statutes. Assuming the governor must sign the writ, what are the requirements that SC of MN put on it’s executive officer.
Assuming none, there are still two options:
I know that Congress is allowed considerable latitude on this. In 1996, Loretta Sanchez defeated Bob Dornan for 47-CA. Despite evidence of voter fraud (including throwing out votes illegally cast), the House of Representatives declared Sanchez the winner in the midst of the investigation. Franken can ask that the Senate declare him the winner.
By depriving MN of a second senator, Pawlenty MAY be in violation of Article V (Question: who needs to consent on the behalf of a state? If the executive officer, then this is not a violation) and Franken may be able to file in Federal court and be declared president without the writ.
You’re working from a false assumption there – courts can and do issue writs of mandamus against executive-branch personages; that’s its function – to compel someone to do something the law mandates that he must do. (The related doctrine of ‘political questions’, where the courts are very reluctant to get involved in what is the prerogative of the legislative or executive branches to resolve – is probably applicable, but the issue there is, I think, one of whether it crosses what I privately term the Reynolds threshold – no remedy is available by application to the ‘political branches’, as in malapportioned legislatures refusing to redistrict.
What Marbury defined that makes it a seminal case is that Federal law must conform to the Constitution (as elasticized) – Marbury’s application to SCOTUS under the Judiciary Act of 1789 was unconstitutional, because the original jurisdiction of SCOTUS is Constitutionally defined, and the Judiciary Act improperly extended it beyond that definition.
So yes, a Federal and I presume state court could in fact order Pawlenty to issue the writ of election by mandamus, should it come to that – just not the Supremes. I presume that they would require a showing that all non-judicial remedies have been exhausted first, under the ‘political question’ doctrine.
And (IMO) they are far from exhausting non-judicial remedies yet.
Where on earth do you get the idea that this was the holding of Marbury v. Madison? Federal and state courts issue writs of mandamus to federal and state executive branch members all the time. Indeed, a writ of mandamus is always directed to either a lower court or to an executive branch member.
Marbury didn’t get his writ because the Judiciary Act of 1789 under which he sought it impermissibly expanded the original jurisdiction of the Supreme Court.
I’ve been reading the local press, both paper and online, and it looks like Pawlenty hopes the Minnesota Supreme Court orders him to sign a certificate of election. That way he must comply without losing his partisan Republican credentials. His statements short of that are ambiguous. And if he seriously thinks he could be a GOP candidate for president, he won’t sign it voluntarily until Coleman has appealed to the US Supreme Court and been denied cert, or lost.