BREAKING: Coleman Lawyer Declares Trial "A Legal Quagmire"
Check out the response from Team Coleman to the election court having ruled against their request for reconsideration of the court's opinion to throw out about 1,000 ballots that Coleman wants counted: They're declaring that there are now serious legal problems in this election.
Coleman lawyer/spokesman Ben Ginsberg said in a statement to the Star Tribune that there is a "fatal inconsistency" in the counting of votes, and that the effect of the court's ruling "is a legal quagmire that makes ascertaining a final legitimate result to this election even more difficult."
The court's rulings are creating a legal quagmire? I've been keeping track of this disputed result since Election Night itself, longer than even Ginsberg has been on board with Coleman. Trust me, we were in that zone a while ago.
Also note that Ginsberg questioned the possibility of a "legitimate" result to this election. It's very clear at this point that Coleman is laying the groundwork for an appeal, should this court rule Franken the winner. And given some prior moments in this trial, we can't rule out the idea that Coleman might shoot for a do-over, by declaring the election unsolvable.
Josh
Elana
Matt
Eric
The MN courts are not going to order a new election. They don't have the power. I'm not sure the SCOTUS would touch this because of the potential conflict with the clear Constitutional provision of Art I Sec 5. The Senate could easily tell the SCOTUS to bugger off.
Coleman can only delay the inevitable. Eventually he's going to lose and Franken is going to get certified. Then it comes down to whether the Senate Republicans can maintain party discipline and filibuster his seating. Can the Dems convince at least two Republicans to side with them? If not, it's a stalemate, and a repeat of NH1974 would be likely.
I'm not so sure the Republicans will try a filibuster, though. Think through the implications. If this works, then any election close enough to be contested can, in effect, be voided and a new election forced. The R's could be looking at some close elections in 2010. Do they want that hanging over their heads? I think there may be at least a couple who think better of this.
February 18, 2009 5:32 PM | Reply | Permalink
I think its still a bit early to assume that Franken will win the election contest. If Coleman can convince the court to count a large portion of the approximately 3,500 absentee ballots still in play, then I think he has a chance. I presume those ballots come largely from counties that favored Coleman.
If Franken wins, and is certified, then I don't think there's any chance of a Republican filibuster. The only scenario where I see a possible filibuster is if Franken wins and the Democrats try to seat him while an appeal is pending. I think the Democrats should do that and should let the Republicans filibuster. I don't think the country will side with the Republicans if Franken has a court ruling in his favor.
February 18, 2009 6:23 PM | Reply | Permalink
That is not going to happen. If a large portion of the 3500 absentee ballots were good enough to convince the court, they would have already been accepted by the local officials.
There have obviously been some mistakes. Some absentee ballots were improperly rejected, and some were improperly accepted, but nothing to indicate that a large portion of twice-rejected ballots deserve to be counted.
Besides, after Coleman is through presenting his favored ballots, Franken will have a chance to present those he'd like included. I’m confident that he will be able to get as many accepted as Coleman does.
February 18, 2009 11:12 PM | Reply | Permalink
Franken has identified some absentee ballots that he would like to add, but not nearly as many as Coleman. Franken's number is around 800.
Let's play with these numbers a bit. Let's suppose that Coleman convinces the court to count 25% of the absentee ballots that he has identified. (That is an optimistic assumption for Coleman, but not unrealistic in light of the testimony of Dakota County Elections Manager Kevin Boyle which suggests 20% success rate for Coleman.) That would mean that a total of 875 of Coleman's absentee ballots are added. If we use the same percentage for Franken's absentee ballots then he adds 200.
Suppose then that each candidate wins his added absentee ballots by 17 points. (I admit this is a highly optimistic assumption for Coleman.) That would mean that Coleman gains a 297 vote advantage from his absentee ballots, while Franken gains a 68 vote advantage from his absentee ballots. Result: Coleman wins the election by 4 votes.
Do I think that result is likely? No. I'm not predicting a Coleman victory. My only point is that its still too soon to assume victory for Franken.
(I left out the third candidate for sake of simplicity, but I admit that factor makes the math even more difficult for Coleman.)
February 19, 2009 1:14 AM | Reply | Permalink
Your assumption of a 25% success rates on both their parts is wrong for at least four reasons. One, Franken has had a much higher success rate in the past. Two, statistically speaking, this is a huge leap from 20%. Three, this is the THIRD round of counting. This implies less than their previous success rate, if anything. Four, Coleman is on record pushing for forgeries to be counted. This says something about the quality of his challenges.
As it is, outside of a miracle, new election, or massive voter fraud, Coleman no chance in hell of winning this thing.
Go check the archives addressing the Franken / Coleman recount at FiveThirtyEight.com if you want good statistical analysis.
February 19, 2009 4:27 AM | Reply | Permalink
The 25% assumption is intentionally optimistic for Coleman. I am not predicting a Coleman victory. I am only pointing out that he could still win if a lot of things break his way.
That optimistic 25% assumption is only the 20% that the Dakota elections manager agreed were wrongly excluded plus an additional 5% where Coleman convinces the court that the election manager is wrong. A 5% difference may be huge in polling data, but I don't think its huge in this context. It just means that the court agrees with the election manager on 19 out of 20 absentee ballots but agrees with Coleman on the remaining 1 out of 20.
I admire the work that Nate Silver does at fivethirtyeight.com. I don't think he is on his strongest ground when analyzing the probable outcome of this trial, however. The difficulty is that the numbers seem too small to be amenable to statistical analysis. That means that the results are too easily swayed by the events of the trial for reliable statistical prediction. For example, in his February 3 analysis of Coleman's chances, he assumes a 1% success rate for Coleman based on success rate during the recount. That assumption may have seemed sound at the time, but it seems questionable after Coleman's attorneys demonstrated that they could get an elections official on the witness stand to admit that 30 out of 150 (i.e., 20%) absentee ballots "were apparently discarded by local elections officials who misunderstood state law or mishandled ballot applications." I'm not questioning Nate Silver's expertize. I am only pointing out how dramatically the events at trial can sway any statistical analysis of this question.
I think that Franken will likely win the election contest. In my opinion, though, its too soon to break out the party hats.
February 19, 2009 9:23 AM | Reply | Permalink
Well, sure, you can massage the numbers and make it look as though Coleman still has a chance, but I think your numbers are totally unrealistic.
I’d be shocked if Coleman gets > 5% of those ballots accepted. And since he has so many, it’s unlikely that all of these voters were vetted, so there could very well be Franken votes in the mix (if they did vet all of them, I’ll stand corrected).
Franken’s team has had a higher success rate at getting rejected absentee ballots approved. The smaller number does not necessarily mean fewer accepted ballots, since I think that he will have a much higher percentage accepted.
The recent direction the Coleman team has been taking, talking about an “invalid election” shows that they know that they aren’t going to catch up and that their only chance is to discredit the election and try to get a do-over.
February 19, 2009 8:45 AM | Reply | Permalink
I don't dispute that I was massaging the numbers to reach an outcome where Coleman wins. If I was making a prediction that would be improper, but I see nothing improper in that approach when discussing possible (if unlikely) outcomes.
I discussed why I think the 25% number, while optimistic for Coleman, is not totally unrealistic in my reply to Bribes above.
I think its a mistake to rely overmuch on the percentages from the recount when predicting percentages in the election contest. They are very different processes. The recount was just the election officials redoing their work from election night in more detail. In the election contest, the parties get to introduce their own evidence and subject the election officials to cross examination.
I'm also uncertain that much weight can be placed on the rhetorical flourishes of Coleman's attorneys at trial.
February 19, 2009 9:37 AM | Reply | Permalink
Coleman can only delay the inevitable. Eventually he's going to lose and Franken is going to get certified. Then it comes down to whether the Senate Republicans can maintain party discipline and filibuster his seating. Can the Dems convince at least two Republicans to side with them? If not, it's a stalemate, and a repeat of NH1974 would be likely.
The Senate GOP won't filibuster if Al is certified after the court actions are done.
NH-74 is a different beast with the two recounts, ceritifcations, etc.
John
February 18, 2009 7:08 PM | Reply | Permalink
Coleman can only delay the inevitable. Eventually he's going to lose and Franken is going to get certified. Then it comes down to whether the Senate Republicans can maintain party discipline and filibuster his seating. Can the Dems convince at least two Republicans to side with them? If not, it's a stalemate, and a repeat of NH1974 would be likely.
If the Republicans did try to fillibuster, would Harry Reid cave again? That's what has to be really worrysome for the Dems.
February 19, 2009 8:54 AM | Reply | Permalink
Well, if it's as bad as Coleman says, I reckon that unfortunately Scalia's-kangaroo court majority will need to step in sooner than thought. As long as Scalia can persuade Kennedy that in these difficult times earth itself depends on Kennedy voting with the banana-republic foursome, they'll get their 5th vote as Kennedy will have no choice but to save the planet with them.
They gotta work out a rationale in light of the direct contradiction in the Constitution that says this is the Senate's business and not theirs, but these guys are creative, don't you fret.
February 18, 2009 5:57 PM | Reply | Permalink
I keep saying this is about nothing but delay so quagmire describes the goal of team Coleman. If Coleman was an honorable man he would concede. He's not. He's a tool. I sense no interest whatever in a new election nor do I sense any deep interest on the part of the average Minnesota Republican in overturning the results. It's the national party and probably a handful of local lunatics running this operation.
February 18, 2009 6:00 PM | Reply | Permalink
Coleman's use of Ginsberg is completely shameless. Why did Coleman need to retain a non-MN lawyer that is not authorized to practice in MN to act as a spokesman (he only applied pro hac vice on February 18th)? Ginsberg never appears before the court in any hearing or on any pleading -- presumably so that he is somewhat outside the court's power when he spews this garbage. At least Elias has the courage to have his name on the pleadings and appear in court.
February 18, 2009 6:08 PM | Reply | Permalink
Ginsberg was parachuted in my Norm's masters in the Party. He's a pure Republican legal tool, known for being a central figure in the staged 'Brooks Brothers riot' in Florida in 2000, as well as being General Counsel to the Bush/Cheney cabal in 2000 and 2004.
otoh, I think Normie's shameless attorney choice is Joe Friedberg, better known in Minnesota for getting clients off from charges like drunk driving and soliciting prostitutes.
February 18, 2009 8:38 PM | Reply | Permalink
Nah. Joe is just warming up for Norm's next trial. Norm's gonna need an expert like Freidberg to deal with the suits and prostitutes.
February 18, 2009 10:04 PM | Reply | Permalink
Is it possible that MN will have only one Senator until the next election cycle? There must be some remedy for this.
February 18, 2009 7:31 PM | Reply | Permalink
The case as it stands right now is beyond the jurisdiction of SCOTUS. This is a state matter and will be until and unless the republicans in the Senate decide to filibuster his being seated.
February 18, 2009 10:22 PM | Reply | Permalink
Why wouldn't that be a separation of powers problem?
What Scalia would probably like to do is come up with some kind of equal protection mumbo jumbo about the vote itself, different precincts using minutely different approaches would so offend Scalia (only in the case that a Republican candidate might be disadvantaged, of course), that he'd be forced to step in. Have no choice in it.
February 19, 2009 4:19 AM | Reply | Permalink
OK, we really need to get Franken seated, so can someone in MN advise: 1) is there any deadline under the state law for a recount or could this go on forever? I recall Rollvag '64 lasted well into 1965 and 2) is there any public outcry in MN where the people have simply demanded Coleman concede and shut up since it's clear he lost.
You can't fool all of the people all of the time...
February 18, 2009 11:49 PM | Reply | Permalink
More billing hours for Ginsberg.
February 19, 2009 10:01 AM | Reply | Permalink