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Coleman Lawyer To Team Franken: I Got Your Estoppel Right Here

The Coleman campaign just had some fun with the Franken campaign, who have accused them of reversing all their positions on counting votes. The Coleman reply: So have you!

The Franken camp spent yesterday and this morning reading over the vast number of examples where the Coleman campaign argued that the requirements for properly filling out absentee ballots should be strictly construed, and that absentee voting is not a right but a privilege. By contrast, the Coleman camp is now arguing for lenient standards to bring in more ballots.

So Coleman lawyer Joe Friedberg just got up for another turn, bringing up legal filings by the Franken campaign from during in the recount, a mix of direct Franken arguments or favorable quotations from prior case law:

"The Minnesota courts have repeatedly emphasized that the overriding concern in interpretation of the election laws is the enfranchisement of voters. Consequently, all ballots cast in substantial compliance with the law must be counted."

"As long as there is substantial compliance with the laws and no showing of fraud or bad faith, the true result of an election should not be defeated by an innocent failure to comply strictly with the statute, and mere irregularities in following statutory procedure will often be overlooked."

The rules are "generally directory and not mandatory. Procedural rules cannot override the principle that all validly cast ballots must be counted."

"Because the principle of voter enfranchisement is paramount, election officials may count absentee ballots even when doing so conflicts with a technical procedural rule."

The Franken campaign has argued that Coleman can't make his current arguments under the doctrines of estoppel and invited error -- that is, he can't switch positions if his old ones suddenly become self-detrimental. The Coleman team's reply is that the Franken camp isn't an honest player in making that argument at all, and that Franken has himself endorsed Coleman's current positions and should be embracing them now.

And at the end of the day, Coleman's lawyers are now saying, it's the voters' rights that count.


14 Comments

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Coleman's lawyers are now saying, "it's the voters' rights that count", or "it's OUR voters' rights that count"? Aren't they still being selective about which votes get counted?

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Yeah.

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At the end of the day you can't change the set and agreed to rules to better suit you after the fact. If private citizen Coleman wants to champion the cause of election reform then more power to him.

And I don't think Franken's arguing 180 is nearly as damning as Coleman's because Franken would gladly have the court case thrown out and then head to the Senate.

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I don't think Franken's gone 180.

I haven't read the briefs, but my guess is that the argument is roughly:

- these were the rules that were adopted.
- Under these rules, we won.
- Unless you (Norman Quimby) can prove that these rules (mostly established by the MN Supreme Court at your insistence) are faulty, we win.

Imagine if Norman Quimby challenged Al to a game of golf. Al agreed, but then Norm got the rules changed so that he teed off from the short tees while Al had to go long. Only problem is, Al still won. Now NQ's comes back and says, you really didn't win, it wasn't fair - we're going to do it again and this time we're going to do it the way you wanted, where we both tee off from the same place.

In short - Norman Quimby, you got the rules you wanted & you lost. You don't get a do-over.

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Norm should get a refund from his so-called lawyers.

Norman Quimby is the one contesting the result. He must show that there was some error, and that the error wasn't invited by his previous positions. Franken's positions now are irrelevant.

NQ has the burden of proof. He asked for these rules, he got these rules... and he can't go back and get a do-over because he lost by these rules.

A tie in this trial isn't good enough for NQ. Tie goes to Franken.

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I agree. Coleman cannot assert that he is the victim of error that he invited.

Collateral estoppel, on the other hand, does not prevent you from making an inconsisntent argument, just asserting an argument on an issue that has already been decided (fully litigated) between the parties.

The reality is that this was a contest decided within the margin of error, and the one who wins the last count wins, just as Dino Rossi (lost to WA Gov. Gregoire after a box of ballots were "found" in King County (Seattle)in 2004. Our system is simply not precise enough to accurately determine winners in elections this close.

This will not end well for Coleman who is starting to look like a whinning sore loser.

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Starting?

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I haven't read the briefs either, but it sounds like they're arguing judicial estoppel, not collateral estoppel.

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D'oh!

In that case, you would need to look a bit deeper to see if Coleman had indeed benefited from his prior position. Since he lost the prior argument (to my recollection) I do not think he would be barred from now arguing a contrary position. Seems like it would apply more to Franken in this circumstance.

I don't think anything prevents Coleman from mounting inconsistent losing arguments - that just makes him appear pathetic.

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1) Franken's not the one who took this to court.

2) Franken never advocated counting absentee ballots that were rejected for one of the 4 criteria in Minnesota statue.

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Coleman's argument does not hold up because the burden of PROOF is on him, not the fact that he now agrees with what Franken's position was before the rules were established.

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Does anyone doubt that if they counted more of these ballots that Franken's lead would grow. Hell, the way the absentees broke for Al, he'd probably match Norm 1 to 1 even in Norm's special, cherry-picked pile.
This just seems like lawyers going through the motions at this stage of the game.

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Yes, it seems unlikely that Franken would lose votes if absentee counting methods were loosened. But if Coleman doesn't try for this, his changes go from next-to-nothing to nothing.

I've lost track, has Franked been seated yet? If not, chances are Republicans are encouraging Coleman to keep up the lawsuit for as long as he's able.

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Just seems like they are stalling at this point, paying lawyers to prevent another dem vote in the Senate. Cause when (if?) Al is seated, they just need one of the "3 amigos" to get cloture.
The MN ECC has become hard to watch. All of the excitement of a root canal. Mentally, it is about as painful.

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