Coleman Lawyer Declares Whole Election Tainted -- And Doesn't Rule Out Re-Vote
Coleman spokesman/lawyer Ben Ginsberg is really stepping up the rhetoric about how the entire vote count in Minnesota is tainted and unreliable -- and he is quite conspicuously not ruling out the idea of asking for a do-over election.
Ginsberg just held a dramatic press conference in the hallway of the court building, with six easels containing photocopies of absentee ballot envelopes that were already accepted and counted on Election Night. Ginsberg said he had 300 examples of ballots from St. Louis County (Duluth), a Democratic stronghold, where the voters clearly didn't follow instructions and the ballots should not have been accepted.
Ginsberg said this didn't just impugn the reliability of the recount -- it showed the illegality of Election Night totals, too, with the number of illegal votes far greater than the "erstwhile margin" of the race: "It also means with this sort of overwhelming evidence that were the court to certify the Election Night results they would be including illegal votes. And the court's charge is to count legal votes, and that would be a clear contradiction."
Ginsberg continued attacking the court's "Friday the 13th Ruling" against the lenient standards that Coleman wanted for admitting additional rejected ballots, saying this was irreconcilable with the count as it already is -- and even some of the ballots behind him wouldn't have met the proposed lenient standards: "The court has now created a muddle of its own making, and that is what it has to sort out."
Ginsberg acknowledged one simple fact -- these votes can't be un-counted, because they were de-coupled from their envelopes on Election Night. "Listen, I don't know what you do at this point with this number of votes from one county that are clearly illegal and are clearly in the count," he said. "I don't know how you physically take them out. It's a monumental problem that's as plain as the charts standing in back of me now. And it's the court's job to straighten them out."
Indeed, he later added that since the court's job is to certify the number of legally cast ballots, and that "you can't do that with any degree of confidence -- with no degree of confidence." And he acknowledged that these problems probably happened in every election across the country, and we only notice it when it's this close -- but that doesn't mean you can ignore it.
One reporter asked point blank if Ginsberg was looking for a re-vote. "That is for the court. The court has that mandate," he said. "And I'm not gonna prejudge what the court should do. But the court has the responsibility to reconcile these issues."
(Ginsberg press conference c/o The Uptake.)
Josh
Elana
Matt
Eric
I'm confused again. Does the Coleman campaign think that absentee ballots that were thrown out for not following the rules should be counted anyway, or that the absentee ballots that were counted should have been thrown out for not following the rules?
Or maybe they just want a swap?
February 25, 2009 6:49 PM | Reply | Permalink
They don't care about any of that. They're simply exploiting Minnesota law that the election cannot be officially certified until all legal proceedings have concluded. They are gaming the system, nothing more.
February 25, 2009 7:18 PM | Reply | Permalink
Coleman wants a time machine so he can go back an un-stipulate. Failing that, he will appeal on the grounds that this court created a contradiction which is impossible to resolve.
It might come down to the question of lesser evil vs. due process. It would be a lesser evil for some ballots not to have been treated correctly, while Coleman cannot prove the election was unfair to him. As I understand it, the burden of proof is on him, so he cannot just say "Well, maybe those absentee ballots which got counted were enough to swing the election for Franken." He has to prove it beyond a reasonable doubt (or maybe if this is civil, by a preponderence of the evidence).
That means, to me, that he cannot get away with handwaving which might work in a criminal defense case, raising the possibility of reasonable doubt can get a criminal off. In this case the role is reversed, he has to make proof positive of sufficient errors or bias to change the election results.
So far his petty attempts are not adding up favorably in terms of number of actual votes he could get for himself or take away from Franken. And he hasn't shown compelling evidence of fraud or bias. So I'm expecting that absent stunning new evidence, when Coleman rests his case soon, Franken will call for the case to be dismissed even before Franken show his own evidence.
February 25, 2009 7:30 PM | Reply | Permalink
Well firstly, I don't think Benny is really "arguing" anything, its more like testifying dogma...
But, he is trying to infer that the election is not valid because a decision by the election court (months after the election, and months after the recount) on a tiny group of ballots (16 or something I think), is in conflict with a decision made by the court (months after election and recount) on a group of 933 ballots of which 130 or so may have been of similar circumstance as the 16. So 100,000's of ballots may be questionable if the decision on "16"(or so) is applied to them, and "magically" those ballots can be assumed to affect Franken positively and Coleman negatively (because otherwise, even if we fell for the logical fallacy of the argument, who would friggin care?).
February 25, 2009 10:06 PM | Reply | Permalink
Oh Jesus Mary and Joseph. Just make him go away.
Please.
February 25, 2009 6:54 PM | Reply | Permalink
And jindal, and rambo, and bonehead, and turkeyman, and kyl and cornyn, and all of them. Please just make the children go away, so that the adults can clean up this terrible fiasco.
February 25, 2009 7:16 PM | Reply | Permalink
"a dramatic press conference in the hallway of the court building"
I thought these only happened on Law & Order.
This looks and sounds like the death throes to me.
February 25, 2009 6:59 PM | Reply | Permalink
The Coleman case is using the trial to prop up their bigger case - the one in the court of public opinion. I don't even think they're trying to win the court case, it's all about optics to which they could run to the press conference with.
I wish Franken had a PR team that would talk down the Ginsberg rants as desperation.
February 25, 2009 7:00 PM | Reply | Permalink
But who is even paying attention? The local news covers a kid hit by a bus and a winter storm warning.
February 25, 2009 7:14 PM | Reply | Permalink
I think Eric Kleefield is the only reporter still following this trial.
February 25, 2009 7:17 PM | Reply | Permalink
God bless him...
February 25, 2009 7:19 PM | Reply | Permalink
He's truly going above and beyond in this instance.
February 25, 2009 7:21 PM | Reply | Permalink
I'm gonna miss this when it's done...
February 26, 2009 8:36 AM | Reply | Permalink
He can ask for a recount, sure...but what are the chances?
February 25, 2009 7:01 PM | Reply | Permalink
That would be a recount, of the recount, recount.
February 25, 2009 7:06 PM | Reply | Permalink
When all of the legal avenues have been exhausted he'll have his own Brooks Brothers Riot to try and fake popular support for a re-vote.
February 25, 2009 7:08 PM | Reply | Permalink
That was the plan all along. Throw as much sh*t at the wall and create a huge sh*t storm to taint the entire election. Mission accomplished for the coleman camp. Problem is it doesn't matter. Let's end this nightmare already. This is really old.
February 25, 2009 7:11 PM | Reply | Permalink
There must be something seriously wrong with the MN system when it lets that idiot drag this crap on and on and on. Who has the authority to shut him up and end this already? Please.
February 25, 2009 7:17 PM | Reply | Permalink
Only a dishonorable creep would have contested the recount. Unless there is evidence of flagrant criminality the courts shouldn't be inserted into the process.
February 25, 2009 7:22 PM | Reply | Permalink
That Coleman is a dishonorable creep does not mean the election should not be contested. But the burden of proof is on Coleman here, and he's at most raised doubts.
One of his main guys is a criminal defense lawyer, so maybe he's trying the case that way. If so, it should fail. Coleman has to show proof positive, in order to win.
February 25, 2009 7:40 PM | Reply | Permalink
He had the legal right to contest it but after the recount in the absence of evidence of election fraud, it was dishonorable to contest it. He's not working in the interests of truth and justice. He's turning an honestly run if inperfect election into a scorched earth political war, damn the costs, and to hell with the public interest.
February 25, 2009 7:49 PM | Reply | Permalink
I was just thinking along a similar line: Coleman is in effect demanding perfection from the process. The court should reject that demand.
I do think you're too strict. The point of the contest is to develop proof of things like fraud, so until Coleman has had a reasonable chance to present evidence, it would be premature to kick him in the teeth. It might have saved time and money for him to have to put his case in a brief in a fashion which would have allowed summary judgment if the brief were not compelling. Or maybe he did and going to court is just messy.
February 25, 2009 8:05 PM | Reply | Permalink
Or evidence of systemic error, or incompetence, or at least is prepared to ARGUE that x,y or z is such, but the Coleman team is not doing that, they are IMPLYING a laundry list of maybes and fishing for proof, arguing for exclusion of ballots at one step, inclusion at the next, then "oops no" exclusion again, and finally, standing in the hallway giving pressers and essentially saying "see, this process is f$@$ed because look what these dummies let us do to it..."
February 25, 2009 10:12 PM | Reply | Permalink
Article I, Section 5 of the US Constitution says in plain English that such authority resides in the Senate itself, since each house of Congress shall be the judge of the "elections, returns, and qualifications" of its members. Note: ELECTIONS and RETURNS. Which is what the Minnesota court contest is about.
February 25, 2009 7:26 PM | Reply | Permalink
It's the senate rules, not the constitution. You need 2/3rd's to change the rules and that won't happen.
February 25, 2009 7:28 PM | Reply | Permalink
That is article I section 5 of the Constitution. Look it up. You refer to the Senate rules. Does it say in the senate rules that the Constitution only applies if 2/3 of the Senate concurs? I find that hard to believe. Perhaps I misunderstood your point. Which Senate rule or rules would nullify the intent of the Framers, with respect to the clause about judging elections, returns, and qualifications? In the Wyman-Durkin case the Senate sent the dispute back to the state for a new election. In the Bankhead-Heflin case, the Senate committee recommended sending the dispute back for a new election, but the entire Senate voted to keep Bankhead in his seat anyway. I'm sure you can think of other instances, but my point it, the Senate is the arbiter here,
If you are thinking that a filibuster might be threatened, I see your point. Rather than forcing the republicans to actually STAGE a filibuster, Reid would capitulate and either agree to re-seat Norm Coleman, or else give in to a Wyman-Durkin non-settlement.
But I cannot see why, in principle, the Senate couldn't accept a petition to use their authority to seat Mr. Franken, or at least to conduct their own judgment of the returns and election. So just point out the Senate rule you are speaking of, and I'll shut up about it.
February 25, 2009 8:44 PM | Reply | Permalink
The rules that stand in the way are the rules regarding certification, found here:
http://rules.senate.gov/senaterules/rule02.php
The Senate would not be able to change this rule without a 2/3rds vote.
We are waiting on the MN-SC court to rule on whether Franken can be provisionally certified until this mess is over. Probably our best bet, but we've been waiting a long time on the ruling. I don't know if it's ever going to come.
February 25, 2009 8:55 PM | Reply | Permalink
The problem with the Constitution and the Senate rules is that the Constitution also says the Senate sets it's own rules, and unfortunately, those have been ratified for the year. Thus, the need for the 2/3rds vote.
February 25, 2009 9:01 PM | Reply | Permalink
I was going to weigh in on that, but you've done a very thorough job. Sadly, it's maybe the umpty-bazillionth time this has been raised, and I am saddened even more by how little people actually understand about how the Senate operates.
Nicely 'splained.
February 26, 2009 2:54 AM | Reply | Permalink
I agree the argument regarding the Senate judging their own elections is a valid one. I think perhaps the SCOTUS would rule in Franken's favor on that one. Possibly, they could rule on not needing a signed certificate as well. However, I believe the Senate would first have to reject Franken to get there (as he most assuredly would be). A position they don't want to put themselves in to get Franken there.
Hopefully, Coleman will be finished this week with his side of the case, as he has indicated.
February 25, 2009 8:59 PM | Reply | Permalink
How did I do on 'splainin' this, mans_best_friend?
February 25, 2009 9:21 PM | Reply | Permalink
Excellent!!! :-)
I'm not sure the SCOTUS would touch this case, though. Too much of a chance the Senate would tell them to butt out, leaving the SCOTUS looking impotent.
And regarding a re-vote, I have two fundamental problems with re-votes:
1. A re-vote is not going to be without flaws, either. What then?
2. By what logic would the results of the do-over be more valid than the results of Nov 5? They might be different and not as close, but why is that result to be given preference? Aren't you effectively disenfranchising those who voted on Nov 5 but can't vote in the do-over? You can't just decide you don't like the results and have do-overs until you get a result you like.
February 25, 2009 9:42 PM | Reply | Permalink
Problem:
"And regarding a re-vote, I have two fundamental problems with re-votes:"
There were three viable candidates in the original election.
No way is there going to be a fair re-vote at this point. Run-off? I believe MN doesn't allow for that, a coin toss is used for an exact tie.
February 26, 2009 5:00 AM | Reply | Permalink
Runoffs are fine, and probably preferable IF they're mandated beforehand. The problem is that you can't change the election rules AFTER the election is over, which is essentially what Coleman is trying to do. The reason is not because it's unfair to the candidates, but because it's unfair to the voters who voted on Nov 5. They voted with every expectation that they were choosing their next Senator. To have a re-vote renders null the votes of all those who voted on Nov 5.
February 26, 2009 9:52 AM | Reply | Permalink
Awesome job splanin the situation. I thought I'd weigh in as well as you were responding to a response to one of my posts. Thanks.
February 26, 2009 7:50 AM | Reply | Permalink
The MN Statutes do not give the Election Court the authority to order a revote. As we have seen, the statute says:
"When a contest relates to the office of senator or a member of the house of representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election. The judge trying the proceedings shall make findings of fact and conclusions of law upon that question. Evidence on any other points specified in the notice of contest, including but not limited to the question of the right of any person to nomination or office on the ground of deliberate, serious, and material violation of the provisions of the Minnesota Election Law, must be taken and preserved by the judge trying the contest, or by some person appointed by the judge for that purpose; but the judge shall make no findings or conclusion on those points."
MN Stat. 209.12. One question and one question only -- who gets the certificate of election. If Candidate A has 1 more vote than Candidate B, then A wins. Again, they have no power to order a revote.
February 25, 2009 7:24 PM | Reply | Permalink
I actually agree with the Coleman camp inasmuch as the result, as it stands, is well within the margin of error for a 3 million vote election. You could probably have 20 recounts and 20 different results as much as 500 votes apart, each way.
But even if the courts agree, there is little chance of a new election taking place. First, if the court ruled that the errors had tainted the election process beyond remedy then no state-wide election in the country could be considered valid, since Minnesota has proved to have one of the best rule electoral systems in the country (despite the problems being magnified by the closeness of the result). Second, there is no guarantee that this would not happen again if they did order another vote. Then we'd be back to square one.
I have zero sympathy for the man who declared that the state-mandated recount was unnecessary and that Franken should concede immediately. His positions are not principled, they are those of political expediency (yes, Franken's not innocent there either, but he has been more consistent overall).
I think Franken will surprise people as Senator. Republicans believe they will have a new easy target for their ire, but I very much doubt he will give them much ammunition to work with (beyond the usual progressive positions he will take). So let's get this over with, now!
February 25, 2009 7:26 PM | Reply | Permalink
"Second, there is no guarantee that this would not happen again if they did order another vote."
It would, different counties have different procedures in counting- it's delegation of authority ie why we do not live in a full democracy, but more of a republic.
February 25, 2009 8:42 PM | Reply | Permalink
It's the absentee ballots that are being targeted. Besides just stalling and jamming up the works (the main goal) if they could get a SCOTUS ruleing reqiring an impossibly high standard of acuracy for handling and counting absentee ballots it would be the cherry on top of the GOP sundae (GOP doesn't have much to be happy about now so any port...). Get rid of those pesky students, military and all those globe trotting liberels, Democrat base all.
I don't believe it will happen but they sure are a determined bunch.
And I agree that Franken will make a good senator. He has a very gentlemanly way of skewering adversaries. Makes 'em laugh while he nails 'em. Not an easy trick.
February 26, 2009 9:42 AM | Reply | Permalink
Super idea. Can we also revote Florida 2000 and Ohio 2004? That would be fun. And, if that's too much to ask, can we revote whether to go to war in Iraq?
February 25, 2009 7:34 PM | Reply | Permalink
Well, maybe Norm should go on TV with his sad puppy face and his rent-a-wife and explain to Minnesotans why with the state budget in deficit and the economy approaching depression he wants the state to spend money on another election in order for Minnesotans to have the opportunity to change the results of the recount. Let's run a poll on that.
February 25, 2009 7:39 PM | Reply | Permalink
GOP would probably agree to bank roll it. Maybe take a page from the Clinton Camp and have it privately funded.
February 25, 2009 7:48 PM | Reply | Permalink
Maybe he could include a puppy.
February 25, 2009 7:50 PM | Reply | Permalink
Coleman has nothing to lose - he's not spending his own money, he knows his political career is over, he'll probably move out of Minnesota and the GOP has lined up future employment for him. He has more to lose if he doesn't do the GOP's bidding, including them probably footing the bill for his criminal defense.
February 25, 2009 7:46 PM | Reply | Permalink
Norm can take his "taint" and shove it. Different counties, different procedures. It's called living in a Republic! You would think the Republican lawyer would get that.
Are his lawyers trying to appear stupid and incompetent for appeal?
February 25, 2009 8:39 PM | Reply | Permalink
Ginsberg is not from Minnesota, that much is obvious. He even LIES, "That is for the court. The court has that mandate,". No, jackass, they do not.
Two things Ginsberg: 1)We are provincial here, so don't insult our election, that is like insulting us, and 2)don't lie.
What a sleaze-bag.
February 25, 2009 9:04 PM | Reply | Permalink
It is truly a subversive and vile representation of the election process (in Minnesota specifically, but also nationally according to BG's own words today). The court made a ruling on 933 ballots, done and agreed to by all parties. Subsequently the court made a ruling on another (smaller) group of ballots. That ruling has NO bearing on the earlier (130 or so of 933)nor does it have ANYTHING to do with the larger pool of votes counted on election day, and recounted and verified subsequently. This is an abusive attempt to steal the legitimacy of the election, as the hope of contesting the result is not just fading, but passed. The fact that swiftboat Ben wants to compare the groups for his purposes has NOTHING to do with logic, precedent, law, or common sense.
February 25, 2009 9:57 PM | Reply | Permalink
Coleman has no incentive to stop. The longer he keeps this up, the longer Franken is kept out of the senate. This strengthens the Republicans and is a thumb in the eye of Franken. All of this endears him to his party, and guarantees his future employment. It's like a filibuster. I expect Ginsberg will start reading the phone book in court to draw things out longer.
February 25, 2009 11:18 PM | Reply | Permalink
I gotta ask about that red patch on Norm's face in the photo. Is he wearing rouge, or did somebody try to slap some sense into him?
I know that there's no way he's blushing from embarrassment or shame.
February 26, 2009 12:11 AM | Reply | Permalink
It probably will be useful to observe that all the evidence displayed on the easels by Ginsberg is cast off essentially home-made displays (by the multi-million dollar Coleman Legal Team) that have been ruled out by the decision of the Trial Court on 13 February. He is entertaining with his junk display inventory.
Because those ballots were from the universe of the Wrongly Rejected Absentee Ballots that both the Coleman and Franken teams agreed to count (along with the county officials) during the recount, and they were accepted by the State Canvass Board and counted -- Ginsberg and the Coleman Team are, in essence, asking to go back and re-work the now certified recount. This is not the role of the Trial Court. Coleman had his bite at the apple of excluding these AB's given him by the State Supreme Court -- and he accepted them. You don't get a second bite of that particular apple. I am surprised people who have been following this thing can't recognize Ginsberg Junk for what it is, and call him out on it. He's a lawyer, he knows full well that evidence already ruled out of order, that questions the settled rulings of the Canvass Board will never be admitted in the Trial Venue.
February 26, 2009 3:32 AM | Reply | Permalink
This is the legacy of the thwarted Florida recount. Republicans now feel that if the election is close enough it doesn't matter who actually got a few more votes, the Republican should get to win or at least get a do-over.
February 26, 2009 9:24 AM | Reply | Permalink