Franken is up by 225 votes over Coleman after a statewide recount. Franken has asked the state Supreme Court to overrule decisions by Gov. Tim Pawlenty and Secretary of State Mark Ritchie denying him an election certificate until Coleman's lawsuit is settled.
In denying Franken's request, Pawlenty and Ritchie cited a section of state law that says "in the case of a contest, an election certificate shall not be issued until a court of proper jurisdiction has finally determined the contest."
Franken's lawyers, in a lengthy brief filed Tuesday, pointed to a different section of Minnesota election law regarding recounts and lawsuits (or "contests") in U.S. Senate races. It says, "no certificate of election shall be prepared or delivered until after the recount is completed. In the case of a contest, the court may invalidate and revoke the certificate."
That section of law "anticipates that a certificate will be issued before a contest, for it provides that a court may revoke the certificate should a contest subsequently determine that a different candidate should have received it," Franken's lawyers wrote in their brief.
Franken's brief allowed there could be "tension" between the provision it cites and the one cited by state officials, but it said the former prevails because it refers specifically to U.S. Senate elections and because it falls in line with the requirement under federal law that every state have two U.S. senators.
Mark Drake, a spokesman for Coleman, said Pawlenty and Ritchie's reading of state law is correct and that the Coleman team hopes Franken "stops these efforts, and joins with us to ensure that every valid vote is counted."
Coleman's lawyers have until next week to reply to Franken's brief arguing that he be seated. The state Supreme Court is scheduled to hear arguments Feb. 5.
The trial on Coleman's challenge itself is set to begin before a panel of three state district court judges beginning Monday.
In anticipation of the trial, Coleman's campaign said it will push for a review of all 12,000 absentee ballots that were not counted in the U.S. Senate race. Coleman's attorneys said the new proposal could bring as many as 7,000 ballots to the race.
The proposal is a change: When Coleman held an unofficial lead, his attorneys argued that rejected absentee ballots should not be part of the recount.