Coleman Apparently Laying Groundwork For Appeal
Norm Coleman's legal team is clearly getting an early start on a very important task: Laying the groundwork for an appeal.
Yesterday they asked the court to reconsider their ruling to not count certain categories of rejected ballots. And today they've continued to submit evidence from one of those categories into the record, ballots for which the voter failed to sign the application form.
The reason you would continue to submit evidence in a rejected category, to put it simply, is to make an appeal much easier. Coleman's team is building up the evidentiary record that can be used in an appeals court -- or perhaps the Senate itself -- and the evidence will be assembled in case a higher judge rules with them as a matter of law that they should be counted.
So there you go.
In another piece of news, the court today granted the Franken team's request to be able to modify and expand the pool of rejected ballots that they'll be allowed to plead from, after the court had previously given a similar permission to Coleman. It should be noted that the court waited until after last week's key ruling to not count certain kinds of ballots, before formally giving Franken this new go-ahead.
In other words, the Franken camp is on notice for which types of ballots they shouldn't bother with. Their new submission is due on Friday.
And speaking of Coleman's ballots, Franken lawyer David Lillehaug has been demonstrating in court today that the remaining set of rejected ballots from Coleman -- currently estimated at around 3,300 -- still contains duds. Coleman lawyer Joe Friedberg submitted a set of ballots to Wright County auditor Robert Hiivala -- whose county went 51%-29% for Norm -- on the grounds that there were improper rejections for supposed signature mismatches.
Lillehaug then got up and laid out how some of these ballots had additional problems, such as a residential address in another precinct (or even another county), which the court has already ruled would disqualify them.
Friedberg then said he submitted ballots where the "ostensible" reason for rejection was signature mismatch. He very frankly admitted in one case that he didn't catch the other problem, and he apologized.
Fiedberg also submitted a list of ballots rejected because the voter wasn't registered -- and admitted that the campaign is still sorting through them. "We are gonna come back when we have proof that some of these were registered," Friedberg said, "which I believe will be a much more efficient process."
Josh
Elana
Matt
Eric
The reason you would continue to submit evidence in a rejected category, to put it simply, is to make an appeal much easier.
This is misstating the situation. Doing so does not make an appeal much easier. It makes an appeal possible at all. Any competent lawyer would do the same thing.
February 17, 2009 12:41 PM | Reply | Permalink
Ditto. The reason you would continue to submit evidence in a rejected category is to keep from getting your ass sued for malpractice for failing to protect the record on appeal.
February 17, 2009 2:13 PM | Reply | Permalink
Coleman's people do no appear prepared in court, and they did not have their witnesses lined up to move forward promptly. The judge showed clear irritation with that today, when it forced an early mid-day adjournment.
It also appeared that Franken's attornies were showing that Coleman had omitted to list wrongfully rejected voters (perhaps those with Democratic voting records).
The delaying tactics still look to be working.
February 17, 2009 12:41 PM | Reply | Permalink
I wouldn't jump to calling it not "prepared".
Knowing these people and who we're dealing with, it's more likely that, say, in a case where there are second issues with a ballot already rejected, the Ginsburg thugs already know this and are putting their chips on the fact that this has somehow eluded the Franken team. When it turns out that it has not, they coyly dismiss it with the equivalent of "Oops, my bad"... but believe me, they know.
February 17, 2009 2:41 PM | Reply | Permalink
Democrats have a 2 to 1 advantage in the MN legislature. One senator has put forth a bill that would allow a provisional election certificate to be issued when there is ongoing litigation. They have sufficient numbers to override a veto from Gov Pawlenty, should he issue one.
If they don't act on this right away, they are the biggest wimps in the world. Coleman has raised more than $5 million to keep this thing going. He has no intention of ever letting this drop. The people of MN are being denied adequate representation while he plays a game he can't possibly win. Pathetic.
February 17, 2009 12:45 PM | Reply | Permalink
Somebody else looked into this. They are three republicans short in the house to override. I am sure that they proposed it and pawlenty said fu, I will veto and then they approached the republicans and they all said that they would not vote to override. Therefore, we are stuck with this ongoing saga. Unfortunately.
February 17, 2009 1:05 PM | Reply | Permalink
The MN Senate is 46-21, but the House is 87-47.
February 17, 2009 1:53 PM | Reply | Permalink
Yep, there is the genius. Thanks for the info and I was trying to give credit where credit was due.
February 17, 2009 2:03 PM | Reply | Permalink
1. It requires 2/3 of the vote to override a veto. That means 45 in the Senate and 85 in the House. So looks like Dems have the numbers to do it, if necessary.
2. If, as Michael A, says they probably checked with Pawlenty and he said "I'll overide you" and they just said "nevermind" how fucking chicken shit is that?
They should just take his word for it and run away like a bunch of little girls instead of making him actually veto the bill and deny the people of MN a senator?
February 17, 2009 3:07 PM | Reply | Permalink
Here is the current make-up of the house. They are three short of a veto proof majority.
http://en.wikipedia.org/wiki/Minnesota_House_of_Representatives
Not arguing it's chicken-shit, but we really don't know the ins and outs of minnesota politics. There must be a reason that they are not forcing he issue and pawlenty's veto. It really defies logic in light of the current dog and pony show that is dragging out forever. Maybe there are negotiations going on to resolve the situation that none of us know about.
February 17, 2009 3:47 PM | Reply | Permalink
Here's what we do know: a MN senator has proposed a bill that would remedy this and it hasn't even come to the floor. Sometimes a cigar is just a cigar.
February 17, 2009 3:57 PM | Reply | Permalink
2/3 of 134 is 89.3, which means 90 votes are needed to override.
February 17, 2009 5:00 PM | Reply | Permalink
And once again, the Republicans demonstrate en masse that with them it is really Party First, screw the country, screw the state, screw especially anyone who is not a true-believing Republican.
February 17, 2009 2:15 PM | Reply | Permalink
And once again we see that the Democrats are total pussies, and unwilling or unable to force an issue to a satisfactory conclusion. There doesn't seem to be an elected Democrat in Minnesota or Washington that gives a flying fuck about Franken.
Democrats simply aren't willing to stand on principle and fight. It's disgusting.
February 17, 2009 6:00 PM | Reply | Permalink
Exactly what part of they don't have the votes do you not understand?
February 17, 2009 7:13 PM | Reply | Permalink
What part of "they do have the votes" that you don't understand? They have enough votes to pass the resolution. Do it and let Pawlenty veto it. You don't know that he will.
Dems need to stop being so fucking scared of their own shadow!
February 17, 2009 8:04 PM | Reply | Permalink
So you're a fan of empty theatrical gestures?
I'm all in favor of Franken getting seated (and just plain getting things over with). Your approach will not do that. End of story. Come back if you get an idea that will produce results.
February 17, 2009 9:05 PM | Reply | Permalink
And you know this how? Because Tim Pawlenty came to your house and told you "I will veto any bill that allows a temporary election certificate to be issued while ligitation is ongoing."
Did he tell you that? You have no way of knowing what Pawlenty will do. And you don't know that every Republican would vote against such a bill.
The governor doesn't even need to threaten a veto; as long as you know his (non-threatened) veto can't be sustained along a strict party line vote, you advocate curling up in a corner and sucking your thumb like a little girl.
WIMP!
February 17, 2009 10:04 PM | Reply | Permalink
this needs to be over with. i am so tired of reading about this.
February 17, 2009 12:47 PM | Reply | Permalink
Eric's making a record
Get thee to a law school!
February 17, 2009 12:50 PM | Reply | Permalink
Where's Coleman getting the funding for this?
February 17, 2009 12:50 PM | Reply | Permalink
RNC. They are just trying to prevent another dem vote in the senate for as long as possible.
February 17, 2009 1:03 PM | Reply | Permalink
A nice fringe benefit of this fiasco is that Coleman will so piss off the MN electorate that we won't have to worry about a second gubernatorial run from him either (Praise Jesus). We dasn't like sore losers here.
February 17, 2009 12:54 PM | Reply | Permalink
Yeah, I can't believe this is going over well with most Minnesota voters, even the ones who were not wild about the prospect of Franken as senator.
February 17, 2009 2:17 PM | Reply | Permalink
I think a lot of Minnesotans are pretty tired of the whole process, even some Republicans. But never fear, there are still plenty of "stump party" Republicans who will NEVER let got the fact that Franken "magically came up with votes" to win in the recount. Being professionally pissy and peripatetically aggrieved is all Republicans really have, in the end.
February 17, 2009 2:32 PM | Reply | Permalink
And relevant to that thought: when is Pawlenty up for dismissal?
Second question: why are the Dems not running a glut of anti-Pawlenty TV ads about "the will of the people" and "party first", etc?
February 17, 2009 2:55 PM | Reply | Permalink
Hehe, have you ever been to Minnesota? Even our radicals tend to be polite, let alone nice PBS liberals. I think Minnesotans are a little TOO interested in being non-partisan, but nonetheless, that type of advertising would surely backfire.
February 17, 2009 3:40 PM | Reply | Permalink
You need to get evidence into the record to argue it on appeal. If it's not in the record, you can't argue about it on appeal. This is not a big deal and evidences that he anticipates losing.
I can't wait until this drama is over. Hopefully soon.
February 17, 2009 1:02 PM | Reply | Permalink
I disagree a bit about this concept of this as a "record building" exercise. The issues have been raised sufficiently for Coleman to argue that the court got it wrong in not looking at these ballots "as a matter of law." So, an appellate court could look at that and adjudicate the issue. If the ruling was overruled, an appellate court would generally remand for the trial court to take evidence on the ballots that should have been included. Trial courts routinely prohibit the introduction of evidence on issues that it has already decided (hence, motions in limine and motions for partial summary judgment). I don't see why they would do it any differently here. Appellate courts are not well equipped for taking new evidence and acting as a de facto trial court. If the appellate court were to act as the trial court based on evidence introduced below in another proceeding there would almost certainly be error in the record and there would be no appellate review of what would basically be the initial trial court.
It is true that the election court is also supposed to "collect" evidence for the Senate, but that makes no sense here because: (1) an appeal to the Senate will not delay issuance of a certificate and (2) that is a stacked court from Coleman's perspective. Also, it is unclear that the Senate, if it were to investigate, needs or would rely on this sort of testimony.
The trial court made its ruling and it should now enforce it. If they erred, then Coleman can take that up on appeal, but there is no reason to delay these proceedings further with such nonsense. This is all about delay, and the court needs to cut him off.
February 17, 2009 1:41 PM | Reply | Permalink
I'm not licensed in Minnesota, but in most states, refusing to let a party make an offer of proof is plain error and, in many states, grounds for an interlocutory appeal and/or to immediately petition for a writ of mandamus.
It is not enough to show on appeal that the trial court erred. You also have to show that the error made a difference to the outcome of the case. If you can't show that, its "harmless error" and you lose your appeal. If you don't have the excluded evidence in the record, you can't make that showing.
At least, that's what I recall learning that day I paid attention in law school.
February 17, 2009 2:24 PM | Reply | Permalink
I don't disagree with the concept of making an offer of proof, but I think that this goes far beyond that. From what I have seen, which is admittedly limited, I think that there is enough in the record for appeal. Given the closeness of the vote count, if there are a couple thousand ballots that the court erroneously failed to consider (which I don't think is the case), then that would get this beyond the harmless error point. All I am saying is that Coleman has made his record sufficiently for an appeal and they should shut him down on that issue and let him take a writ if he thinks it is so important.
February 17, 2009 2:30 PM | Reply | Permalink
Would the appeal go to a fed appeals court or right to scotus? How long could that all take? And at what point does harry reid say f.u. and simply seat franken?
It really bugs me how often progressives have to say, Imagine if the shoe were on the other foot. But imagine if the shoe were on the other foot.
February 17, 2009 1:47 PM | Reply | Permalink
The appeal would first go to the MN-SC. I believe once they rule they would construe the legal requirement satisfied and direct the state to issue the certificate. I have serious doubts whether a federal court would touch this.
February 17, 2009 1:56 PM | Reply | Permalink
No way to get there; there's no federal jurisdiction till you get get past MN-SC and can petition to SCOTUS for cert. I suppose Franken could have gone to federal court claiming the state law process violates federal rights, but even then, Younger abstention and the Anti-Injunction Act would likely bar relief. And, in any case, its not like Quimbey can go to Federal Court claiming his own lawsuit violates his rights.
February 17, 2009 2:38 PM | Reply | Permalink
That's what it sounds like when a lawyer agrees, btw. A simple "yep" isn't billable.
February 17, 2009 2:41 PM | Reply | Permalink
One point of disagreement--again from agressive ignorance given that I haven't read the applicable statute--is that I would expect the trial court to order the certificate issued, at which point the Senate would have to seat Franken pending appeal unless Quimbey can get the MN-SC to issue a stay, right?
Not that a judgment ruling that Franken won and issuance of a certificate would be enough to keep the Senate Republicans from continuing to obstruct, of course, but reason enough for Reid to force them to cast another vote that exposes them as obstructionist game-playing assholes.
February 17, 2009 2:46 PM | Reply | Permalink
If I recall correctly, the statute says that no certificate can be issued until all appeals are resolved. To me that means no certificate until at least the MN-SC appeal.
The question I've been mulling is whether the SCOTUS would touch this case. If they do they risk the Senate telling them to bugger off, citing their Art I Sec 5 authority. The SCOTUS might not want to risk that.
February 17, 2009 5:13 PM | Reply | Permalink
I believe that a direct appeal of the panels' decision would go next to the Minnesota Supreme Court (see Minn. Stat. Ann. 209.09 subd. 2 & 209.10 subd. 4. From there, Coleman could appeal to the United States Supreme Court.
I suppose Coleman could also try to collaterally attack a decision from the panel with a civil rights action in federal district court. I doubt Coleman would go that route, however, because it wouldn't stop the Minnesota from issuing an election certificate, unless Coleman convinced the court to issue an injunction. Article 1, Sect. 5, Cl. 1 of the United States Constitution would also seem to present a problem for this approach.
February 17, 2009 2:09 PM | Reply | Permalink
Yes, this would go directly to the Minn. Sup. Ct. It is interesting because the Court is made up of 7 Justices, two of whom would probably recuse themselves. Magnuson because he was on the Canvassing Board, and Page because he is the person that appointed the three judge panel.
I would have a hard time believing that the remainder of the Supreme Court would chose to overturn anything from below in this kind of situation. You have three respected judges appointed by a fellow justice. You have another justice that was involved in the original recount.
Affirmed.
February 17, 2009 2:16 PM | Reply | Permalink
Yep, the appeal with be lightening quick and affirmed. The problem is getting there.
February 17, 2009 2:18 PM | Reply | Permalink
I agree that you would have a limited court -- the two that were on the recount panel have recused themselves from everything so far that the MN SCt has done. Not sure that appointing the panel would be enough to recuse Page, but perhaps.
February 17, 2009 2:55 PM | Reply | Permalink
I forgot about Anderson. That makes three that would probably recuse themselves. I do think Page would recuse because he personally appointed the three Judge Panel.
February 17, 2009 4:04 PM | Reply | Permalink
If the shoe were on the other foot, you would see operatives for the RNC on television every day complaining loudly about how the votes have been counted and recounted and recounted again, and just how many times will the ballots have to be counted before Franken accepts that he lost and does the right thing and concedes?
If the shoe were on the other foot, you'd have had people in Brooks Brothers suits shouting "Obstruction!" and marching outside the courthouse every day, demanding that Franken's case be kicked out of court and hinting that they might actually storm the courthouse if the case wasn't shut down immediately.
February 17, 2009 2:30 PM | Reply | Permalink
It is a state case. Appeal is thus to the Minnesota intermediate appellate court (I assume they have one), then to the Minnesota supreme court (I assume they don't have more than on intermediate appellate court) and then to SCOTUS.
But, now that I mention it, I have to admit I'm speaking from total ignorance. Anyone who actually read the statute, do appeals bypass intermediate steps and go straight to the MSCT?
February 17, 2009 2:31 PM | Reply | Permalink
Well, that'll teach me to insta-respond.
February 17, 2009 2:33 PM | Reply | Permalink
Where are the cries for tort reform? Oh yeah, only when regular folk need lawyers. I forgot.
February 17, 2009 2:06 PM | Reply | Permalink
I believe the Minnesota Secretary of State has already canvased county election officials and other stakeholder for recommendations on changes in the Minnesota election laws that would address the problems encounter with the absentee ballots and that base on that feed-back, Secretary of State Mark Ritchie is considering a recommendation to the Minnesota legislature that would call for doing away with most kinds of "absentee voting" and putting in place a process for "early voting" using voting machine located in county court house. The early voting would be done on paper ballots scanned through the machines. Voter registration would be verified at the court house before a voter could cast his or her ballot. And a voter could register on-site at the court so that he or she would be eligible to cast a ballot.
The basic idea would be to use the same process for early voting as is used for Election Day voting except the polling place for early voting would be at the court house rather than at the precinct polling station. This kind of reform would prevent the many of issues that the Election Contest Court is now facing.
February 17, 2009 3:54 PM | Reply | Permalink
We have that kind of on-site absentee/early voting in Portland, Maine, except that it's at City Hall instead of the courthouse. Works well; we've done it often.
February 17, 2009 9:09 PM | Reply | Permalink
Could someone please fly Coleman to a remote place in a small aircraft during a storm? When is this fucker ever going to give it up?
Why don't the people of MN sue under the equal protection clause--they are not being properly represented in congress.
February 17, 2009 2:19 PM | Reply | Permalink
Amen.
Problem is the small plane fixers are all on the other side (wellstone, Caranhan, Litton, Tower, Hienz,... and now that guy who Rigged Ohio)
February 17, 2009 4:32 PM | Reply | Permalink
Norm will need some ACTIVIST JUDGES to get around Article I, Section 5 . . . along with the compliant acquiescence of Senator Milquestoast Reid. Sad to say, Norm will have no trouble with either of those needs.
February 17, 2009 4:52 PM | Reply | Permalink
I don't see this fiasco going Coleman's way in the end, but along the way, it is stealing a vote from the Democrats, and stealing representation from Minnesotans. As long as they can string this along, it's a plus for them in their eyes. Of course, it's just doing business for the Republican party.
February 17, 2009 11:19 PM | Reply | Permalink