Not Even The Inauguration Can Stop Litigation In Minnesota
Even on this day, of all days, the Minnesota Senate disaster keeps on going.
Late last week the Coleman legal team obtained a subpoena for state elections director Gary Poser, who was in charge of running the recount, ordering him to hand over internal correspondence relating to nearly every controversial topic you can think of.
Now the state Attorney General's office has come back with their own motion to quash the subpoena, arguing that the documents being requested are not legally within the bounds of the contest, and that the state is not required to take up its time to produce all of them.
The precise legal arguments in this latest squabble seem a bit unclear, as does the significance of the development itself. But one thing is easy to understand: Not even the inauguration of a new president can stop the lawyers from arguing in Minnesota.
Josh
Matt
Eric
Brian
Coleman's team is on a fishing expedition, hoping some correspondence shows an air of bias towards Franken.
January 20, 2009 5:36 PM | Reply | Permalink
This fishing expedition and the earlier motion to count all 12,000 absentee ballots are sure losers and Coleman knows it. What he's really doing is setting up grounds for appeal in federal court on Equal Protection. Thanks to Bush v. Gore, the case that was so flawed that the justices themselves said it should not be used as precedent in future cases, anyone who wants their election cases heard by federal court has only to set up some sort of Equal Protection strawman.
January 20, 2009 5:39 PM | Reply | Permalink
More discussion here:
http://campaignsilo.firedoglake.com/2009/01/19/franken-coleman-update-012009-he-wants-us-to-do-what/
January 20, 2009 5:47 PM | Reply | Permalink
There will be an appeal to the MN-SC regardless. What Coleman is setting up is grounds for appeal to FEDERAL court, and Bush v. Gore points the way - Equal Protection arguments.
Here's my prediction how this plays out:
The 3-judge panel makes Coleman narrow his claims to something approaching reasonable.
Coleman loses regardless.
Coleman appeals to MN-SC - and loses again.
MN Governor and SoS say that MN law has been satisfied and issue certificate.
Senate accepts Franken's credentials immediately. Republicans moan and groan but can't muster the votes to stop it.
Coleman appeals in federal court citing the classically flawed Bush v. Gore, which isn't supposed to be used as precedent, but which will, indeed, be used as precedent.
This is where it gets really interesting because you have the potential for a monster constitutional taffy pull. What happens if the Senate tells the federal courts to butt out, citing its Art I Sec 5 authority? Who has the power to force the Senate to unseat Franken (assuming Coleman prevails in federal court, which is a big assumption)? Will the federal court even take the case, risking looking impotent if the Senate indeed tells them to butt out? Even if it goes to the SCOTUS, if the Senate stands fast to its Art I Sec 5 authority, what's the SCOTUS going to do about it?
This is all just a potential fight, but it's interesting to contemplate.
January 20, 2009 6:03 PM | Reply | Permalink
I think if none of Coleman's fishing expeditions pan out, he drops it before bringing it to the Supreme Court. I think Republicans at this point just want to keep Democratic votes at 58 for as long as they can to maximize their influence over Obama's early agenda.
And if Coleman does try to go to the Supreme Court, I can't imagine a situation where they'll want to touch the case.
January 20, 2009 6:54 PM | Reply | Permalink
January 20, 2009 11:14 PM | Reply | Permalink
Very different situation. In addition to being the presidential race, Florida was an absolute catastrophe of an election, with each county doing its own thing and the state and district courts give wrong and conflicting orders. The SC pretty much had to get involved to sort things out, even though it ended up screwing it up itself.
In this case, everything was done consistently and by the books, so the only thing Coleman can argue is that the lower courts decided against him, and that doesn't fly.
January 21, 2009 7:07 AM | Reply | Permalink
That was true for Florida right up to the point where the FL-SC finally got it right by ordering that all counties do a manual recount. That's when the SCOTUS stepped in. Constitutionally, elections are state matters (no matter whether they're presidential, senate or what) and federal courts, including SCOTUS, have no business interfering.
January 21, 2009 10:11 AM | Reply | Permalink
Things are never this simple. The fishing expedition essentially challenges the law that states that the loser must already have evidence of wrongdoing and burden of proof is on them.
Court will probably rule go fish in a lake. What is really at stake here is the fair and equitable administration of the election under the laws. By appealing all the thrown out ballots they are appealing the law that rules apply to vote by absentee.
The wrongfully thrown out ones were done so not administering the election properly and those plaintiffs of the case (64) have a case that they are holding bias of the objection without reason.
Now as the process works yes Coleman is trying to find a new venue but the Constitution holds that the Senate is the final arbitrator of who seats.
So it goes back to the State to make certain its administration was done properly.
Now this is not what this is about. Coleman and the GOP are trying to manufacture an issue, a political issue that is about the future. In other states this might be easier but MN's and the upper Midwest the culture is less patient with outright partisanship in the case of elections. But this is about power.
January 21, 2009 2:34 PM | Reply | Permalink
RWN
It is about "process" (sound process"), not "power."
January 21, 2009 3:31 PM | Reply | Permalink
"...what's the SCOTUS going to do about it?"
Hmmmm....yes, indeed. Exactly how would SCOTUS rule? Anybody want to place a bet? I'll give you 5 to 4 odds.
January 21, 2009 12:08 PM | Reply | Permalink
Hi Man's Best Friend
It seems to me that you are on pretty good ground for believing:
(1) that Coleman will lose his appeal with the Minnesota Election Contest Court (composed of the three judge panel).
(2) that Franken will be then certified by Gov Pawlenty and Secretary of State Ritchie as the winner of the election).
(3) that the Senate will then seat Franken.
And like you, I would think that Coleman would immediately file a appeal with the courts. However, if he did so, I think it would begin with the Minnesota Supreme Court, not the federal courts).
Also, like you, I think such an appeal would probably be based on the Equal Protection Clause -- however, I don't know whether he would even bother to bring up Bush vs Gore. (Why would he want to, need to?).
Finally, I would think Coleman and his legal team would have a very difficult time with an appeal based on "equal protection"; because contrary to Mr. Eric Kleefeld's glib comment that "Minnesota Senate disaster keeps going on", what is really going on is not a "disaster" but rather a fairly well orderly and well conceived process, prescribed in Minnesota election law, that is designed to ensure (a)that every ballot that is counted is a legally cast ballot and (b) that the tally of the those legal casts ballots is accurate.
Because this process is both well concieved and is being well executed (despite Mr. Kleefeld's snarky remarks to the contrary), it seems to me that Coleman's legal team would have a very difficult time seeking redress under the Equal Protection Clause.
In other words, because the process seems to be ensuring that to the degree humanly possibly, each ballots is receiving fair hearing (to determine that it is legal and correctly tallied) I don't see how the Coleman team could make much of a case in claiming that the the right of the voters to have their legal votes accurately counted was somehow violated.
January 21, 2009 2:38 PM | Reply | Permalink
He can't be helping himself in MN so I wonder who is pulling his strings.
January 20, 2009 5:56 PM | Reply | Permalink
... and paying his lawyers.
January 21, 2009 12:21 PM | Reply | Permalink
How is this playing in Minnesota? Who's winning the PR battle?
January 20, 2009 6:20 PM | Reply | Permalink
Franken has been playing it cool which is probably just as well. I think Norm's the loser. I don't sense any desire at all by the public to have this drawn out. As one Republican said to me, the Democrats clearly won in November and it's stupid for Norm to continue this. Obviously, it is so close that there can't be a clear winner in any case.
January 20, 2009 6:24 PM | Reply | Permalink
Jonze,
Here in Minnesota, "the electoral process" and its "custodians" are winning the PR battle. These "custodians" of the electoral process include Secretary of State Mark Ritchie and his office, the Canvassing Board, the Minnesota Supreme Court and even Republican Governor Tim Pawlenty (who has publicly defended the recount process).
Yes, there are some need for making some improvements in the process. But overall, Minnesota election defines a process well ensuring that every every legally cast ballot is accurately cast. In many ways, it is a model process. So far, the custodians of the process have seemed to have ensured that it has been carried out in an orderly and fair manner.
Note, in a previously posted blog, I mentioned the Mark RECOUNT Ritchie was name Minnesota Politician of the Year by Politics In Minnesota, a journal published by a Republican operative and media consultant. In the announcement, the publisher provides a testimonial to Secretary of State Ritchie and the recount process.
Note: the Election Contest Court pre-trial hearing beginning at today at 2:30 (CST)to will be carried live on Minnesota Public Radio and also live coverage will be streamed by the UpTake.
January 21, 2009 3:29 PM | Reply | Permalink
Thanks for the major buzz kill, Norm.
Many happy returns, jerk.
January 20, 2009 6:26 PM | Reply | Permalink
make norm stop.
January 20, 2009 6:26 PM | Reply | Permalink
Al had to miss being at the inauguration, as a Senator, because of Coleman's petty mean nasty cling on to the recount nonsense.
January 20, 2009 6:34 PM | Reply | Permalink
Yea thats a good point i haven't thought of, Al must be pretty ticked off about that.
January 21, 2009 1:11 AM | Reply | Permalink
Norman, we hate you.
January 20, 2009 8:52 PM | Reply | Permalink
This needs a little more context. Is Minnesota Politician of the Year like Time’s Man of the Year, where one year Adolph Hitler was selected?
In other words, is Minnesota Politician of the Year an award for excellence or simply the politician who had the most influence in the past year?
January 21, 2009 4:02 PM | Reply | Permalink
Hi TMPReaderHG
The announcement of the award makes it clear that Ritchie was chosen because of the outstanding way he has carried out his duties as Minnesota Secretary of State.
EXCELLENCE is the operative term.
The fact that the tribute to Ritchie was written Sarah Janacek, a by a long term, well respected Republican is important given that the wing-nuts have been trying hard to discredit Ritchie and his work (including his management of the Recount).
You can Google: "The 2008 Politics in Minnesota Politician of the Year" to read Janacek's explanation of why Ritchie was chosen.
Stephen
January 21, 2009 4:31 PM | Reply | Permalink