The Minnesota Election Trial: A Legal Mess
The Minnesota election court is rolling along without delays today, and the fairly productive morning we've just had served to make even clearer something that we've known all along: Once you get to the most minute levels of an election, the whole thing is a legal mess.
The Coleman legal team continued its questioning of Jim Gelbmann, the Deputy Secretary of State who oversaw much of the recount. The focus of the Coleman team's case is not simply human error but human variation -- that is, the recount rules may have been uniform statewide, but the human beings administering the rules applied them differently -- and this constitutes a violation of the Constitution's guarantee of equal protection.
For example, an absentee ballot might be rejected as having a bad signature or wrong information about the voter -- but it's really a matter of sloppy handwriting that an election official in one corner of the state would recognize and let slide, while someone elsewhere wouldn't let it pass. At this point it's hard to imagine any election system that would accomplish true equality of treatment -- and if it does exist, it'll take a long time to sort this out.
It's also become so much more apparent just how problematic it was for the state Supreme Court to have given the campaigns a veto power over the sorting and re-admission of absentee ballots that were found to have been rejected through clerical errors. Over 400 ballots now exist that the local officials and the state officers believe should be counted, and are still sealed up.
"So based on the candidates' representatives' own desires and motives, the people whose votes weren't counted were disenfranchised," said Coleman lawyer Joe Friedberg, building his case that ballots now exist that must be counted.
To which Gelbmann replied: "That is correct, and that was pursuant to the Supreme Court order."
Late Update: This post originally made an incorrect reference to a ruling on a legal motion relating to the scope of the case, when the ruling was in fact related to a different motion. The rules of evidence remain open but unresolved for now.
Josh
Elana
Matt
Eric
This thing is going to take forever
I expected the court to limit the issues and evidence.
Apparently they haven't
Franken's not going to be seated until summer I fear
January 28, 2009 12:44 PM | Reply | Permalink
Who's running this damn trial, anyway, Judge Ito? The only way Coleman's arguments can be taken seriously is if you have one person, using mathematically verifiable standards of handwriting analysis, analyze every disputed ballot. This type of accuracy is simply not possible in the real world.
Coleman is obviously not making serious arguments on his own behalf. His challenges need to be dismissed with prejudice immediately. There are real interests at stake here.
January 28, 2009 12:58 PM | Reply | Permalink
Relax. They want to hear all the evidence, but that does not mean they're going to accept Coleman's claims at face value. It's obviously impossible to have any system administered by humans that doesn't have some variation. Unless they can come up with some kind of computer to read and compare signatures it will always be subject to interpretation and that will always vary from person to person. They can't impose a remedy that will be impossible to carry out.
January 28, 2009 1:12 PM | Reply | Permalink
So you think it's OK that Coleman drags this out for weeks by proffering one bogus claim after another?
If the only thing you have to add is "relax," please stop commenting. I don't want to relax. These issues are important to many of us, and the frustration we feel, now that our guys are allegedly in charge after eight years of us being bitchslapped on a daily basis, is justified.
You may be right that it will all work out. I just hate that the establishment Dems, the media, and even "activist" judges are willing to let Coleman make a mockery of the electoral prcoess and our judicial system. It will provide a blueprint for future Republicans who can't win elections on the merits, but are more than happy to obstruct and delay action by our legitimately chosen representatives.
January 28, 2009 1:24 PM | Reply | Permalink
So in effect, you're saying that Coleman should not get his day in court because...umm...why again? Please keep in mind that any argument you use can and will be used later against someone you happen to like.
January 28, 2009 2:43 PM | Reply | Permalink
Imagine the abuse Gore ver. 2000 would have received if he'd demanded this level of analysis. "Do as I say, not as I do."
January 28, 2009 1:13 PM | Reply | Permalink
I am not convinced the judges are doing anything to harm Franken. In fact the more they let in the harder Coleman's appeal.
January 28, 2009 1:13 PM | Reply | Permalink
The longer it takes to seat him, the less legitimate his election looks. And if you don't think that Republicans will use the fact he wasn't seated in a timely matter against him, then I've got an Illinois Senate for sale for you.
January 28, 2009 1:26 PM | Reply | Permalink
Nah, it doesn't look legitimate already. It could take six months, which it won't, and the stand-up's election still will look just as illegitimate today as it will in six months time.
January 28, 2009 1:42 PM | Reply | Permalink
So, if Franken's win is "illegitimate" then why is the Republican Governor of MN silent on the subject?
January 28, 2009 2:55 PM | Reply | Permalink
I did not say that it was illegitimate. I said that it looks that way and will be argued that way by the gop regardless of what happens. That was the point.
January 28, 2009 3:22 PM | Reply | Permalink
There's always a lot of moaning and groaning over close elections. A win is a win is a win - even if he won by 1 vote. When Franken is eventually seated, his vote will count the same as all the other Senators.
If it was a congressional election one might worry that it could be an issue in two years, but by 2014 when he's running for re-election (assuming he does), no one will care anymore.
January 28, 2009 3:02 PM | Reply | Permalink
True.
January 28, 2009 3:23 PM | Reply | Permalink
Very true.
We had a similar mess in the 2004 gubernatorial race here in Washington State.
2008 was a rematch between the same two candidates and many of Dino Rossi's supporters were still grumbling about "vote fraud", "stolen elections", "found ballots", etc. While simultaneously using the Florida presidential of 2000 to claim that it is the Democrats who are sore losers.
None of that stopped Christine Gregoire from winning by a much bigger margin than she did in 2004.
January 28, 2009 8:50 PM | Reply | Permalink
Why stop at Illinois,think of the NY senate seat.
January 28, 2009 1:56 PM | Reply | Permalink
You can never have judges interpret the same words equally, and Franken should only have to show that the election judges did not act arbitrarily or recklessly. Ironically, the phrase equal protection allows some judges to find that gays are denied equal protection by not being allowed to marry, while other judges don't. There has to be a point when a line has to be drawn because this is not a perfect world.
January 28, 2009 1:31 PM | Reply | Permalink
You can never have judges interpret the same words equally, and Franken should only have to show that the election judges did not act arbitrarily or recklessly. Ironically, the phrase equal protection allows some judges to find that gays are denied equal protection by not being allowed to marry, while other judges don't. There has to be a point when a line has to be drawn because this is not a perfect world.
January 28, 2009 1:36 PM | Reply | Permalink
Sorry about repeat post.
January 28, 2009 1:37 PM | Reply | Permalink
I say the MN SC should just stop the whole thing and say "we will count all rejected absentee ballots". That will panic good ole Norm because he knows that will do nothing but increase Franken's lead. If he can't just cherry-pick the absentee ballots he wants counted, he won't want them all counted.
I really can't see the MN SC allowing him to cherry pick rejected absentee ballots to count. That would violate Franken's rights.
January 28, 2009 2:51 PM | Reply | Permalink
I'm not a huge fan of the matching signature condition for absentee ballots. There's got to be a better way. But that said, Coleman's monkeys aren't making any sort of legal a case so far; they're just whining and stalling, and I hope the judges squash it once it becomes repetitive. The idea that there are going to be 11,000 ballots individually entered into evidence, or hundreds of witnesses testifying "no fair!" is a non-starter.
The law may stink, but that's another matter. The trial isn't going to overturn the matching sig requirement, or even attempt to remedy it. Clearly, the call belongs to election officials in each precinct/county, and they've made their call. I don't think there is any other *fairer* standard to move sig-requirement rejects into the fifth pile for counting.
January 28, 2009 3:00 PM | Reply | Permalink
The thing is, even if they find that the matching of signatures was inconsistent, what possible remedy could they impose? Have one person examine all 11,000 pairs of signatures? Any volunteers? Throw out the law requiring matched signatures? That's not going to happen. So no matter how well Coleman makes the case, I don't see how the judges can do much about it.
January 28, 2009 3:15 PM | Reply | Permalink
This is the problem: elections are a mess. There are humans that make mistakes. There are machines that make mistakes. The point, however, is to make sure that the recount process is legitimate. The Court was completely wrong to rule that the recount couldn't include all absentee ballots. That was an erroneous decision, regardless of what the statutes say, because from a practical perspective each party could nullify any absentee ballot. So, now we have these several thousand ballots that may have been wrongly rejected and we have the folks who made the decisions on these ballots a long time ago having to testify about why they rejected the ballots. It's a mess.
I think Coleman should have his day in court, but I also think that at this stage of the game, his day has to be limited to what we know to be evidence today. So, if someone testifies, for example, that they voted by absentee but that their spouse or their girlfriend or whomever filled out their ballot, their vote isn't counted. If someone else testifies that they voted by absentee and they completed their ballot, their vote should count if they met the requirements for voting by absentee. Yes, this is just like a recount of the absentees. But, there really isn't an easier way, is there?
January 28, 2009 4:00 PM | Reply | Permalink