Coleman Lawyer: The Constitution Now Requires Counting Invalid Votes
In some key arguments just now before the Minnesota election court, lead Coleman lawyer Joe Friedberg has just advanced a novel argument: While he's until now been arguing ballot by ballot that certain rejected absentee envelopes really meet all legal requirements, he's now going much farther -- demanding that a large number of votes that don't meet the requirements be counted, anyway. And failure to do so is a violation of Equal Protection.
Friedberg's argument is that most of them must be counted -- though he was careful to say that this would not mean all of them --because there have already been documented cases of improperly-accepted ballots elsewhere in the count, where a voter clearly failed to properly fill out the required forms. "There's not a single type of malady in the ballot or application process that has not already been admitted one way or the other," he said.
And since he defines an Equal Protection violation as a failure to treat similarly-situated people exactly the same, this means it's a violation of Equal Protection rights to not count invalid votes, if it can be shown that a significant number of similarly-illegal ballots were counted elsewhere.
For example, Friedberg points out that 24 counties did not reject a single ballot on the basis of a mismatched signature on the envelope versus what was on the application -- but surely, there must have been signatures in there that other counties would have rejected. By comparison, one individual Minneapolis suburb rejected over 70 ballots over signatures.
On a related side note, Coleman plans to bring in King Banaian, an economics professor and right-wing blogger, to make a statistical argument that the geographic variations in the numbers and kinds of rejected absentee ballots demonstrated a constitutional violation.
Franken lawyer Kevin Hamilton argued for a motion to not allow Banaian's testimony, saying that even if we document variations, we haven't explained why those variations happened. For example, other factors can contribute: Different numbers of first-time absentee voters, disabled voters, education levels, etc. We'll see how that works out.
Friedberg's case for a level playing field has endless possible applications, to say the least. If negligence goes unpunished in some places -- though Coleman appears to be excluding outright criminality -- it must be pardoned everywhere else. Does this mean every parking ticket I ever got for an expired meter was a violation of my rights?
Josh
Matt
Eric
Brian
What an absurd argument, asking the court to deliberately allow the violation of a statute because others got away with it. Taken to its extreme, that's like a guy who murdered his wife making an equal protection argument at his trial because some other guy got away with it.
February 12, 2009 4:11 PM | Reply | Permalink
Coleman is setting up to take this all the way to the Supreme Court with this latest gambit. And there it will come down to which side of the bed justice Kennedy woke up on that morning.
You know how Roberts, Alito, Scalia and Thomas will find...
February 12, 2009 4:14 PM | Reply | Permalink
This is it in a nutshell.
God help us.
February 12, 2009 4:15 PM | Reply | Permalink
Agreed. That is the whole premise of this argument. However, I believe the Supreme Court would decline to hear this case.
February 12, 2009 4:41 PM | Reply | Permalink
Agreed, and the Senate will seat Franken after the MN Court decision, regardless of whether SCOTUS accepts the case and regardless of election certification in the immediate aftermath of the decision. Even the dish rag Reid has his limits.
February 12, 2009 5:57 PM | Reply | Permalink
More of Coleman's kitchen sink strategy. Only problem with their theory is that it's already been proven to be a bogus claim. When people apply for an absentee ballot (in Minnesota any ways) they agree that absentee voting is considered a privilege and agree to the terms and conditions of receiving the absentee ballot.
February 12, 2009 4:16 PM | Reply | Permalink
And Franken can't even asked to be sat provisionally because Coleman will counter saying let the good Governor of Minnesota name somebody other than the two of us...
February 12, 2009 4:18 PM | Reply | Permalink
This argument should be typed up on parchment and nailed to the wall of the US Supreme Court. Once you twist Equal Protection beyond recognition, you can't put it back in shape again by limiting consideration "to the present circumstances".
February 12, 2009 4:20 PM | Reply | Permalink
Gregg's out...lol this is crazy!
February 12, 2009 4:23 PM | Reply | Permalink
Or as Delbert McClinton likes to say, hell I didn't shoot him, he shot himself while he was shootin at me.
Apropro of nothing, I just like throwing it in there.
February 12, 2009 4:28 PM | Reply | Permalink
Following this day by day I can only say, what a convoluted, hopeless, twisted up bunch of twiddle. And I don't even know what that means.
The only thing that makes any sense is that these guys are dareing the court to throw them out. They want to end it because they have to know that the more junk they throw the more amunition they give the Franken team. So they get thrown out here and then they can drag their feet "preparing" for the next appeal.
They can't seriously believe this goes any where. The only conclusion is the dismantling of the electoral system. Aply these kinds of standards to any human endevour and we would just have to pack it all up as unworkable. Of course that is the Republican view of government so...
February 12, 2009 5:00 PM | Reply | Permalink
Thank god at least one section of the economy is doing well. Maybe we should all become ambulance chasers!
February 12, 2009 5:56 PM | Reply | Permalink
What this comes down to, again, is the difference between Equal Protection for Voters vs. Due Process For Coleman.
1) Coleman already agreed to count specific ballots, so he cannot reverse that now. It's possible that someone would overrule the MNSC on its weird idea to let the candidates decide which votes to count.
2) The larger issue is that it's not relevant for the purposes of this contest if some voters were robbed of their votes. What is relevant is whether Coleman got a fair shake from the election process. All this focus on one ballot after another strikes me as perverse.
In this lawsuit, voter rights are not the key, due process for the candidate is what is at issue. That the two might overlap is obvious, but the importance to note is that they are not identical and the differences are important.
February 12, 2009 8:31 PM | Reply | Permalink
I've got an idea. Franken should just concede the counting of the additional absentee ballots just to speed things up, then watch his lead over Coleman jump to 1000 votes.
I still don't understand what Coleman has to gain from this. He got clobbered in the absentee count--and I can't imagine that any objective standard applied to the rest of the piles of absentee ballots will magically produce a net gain of votes for Coleman.
February 12, 2009 10:36 PM | Reply | Permalink
Ah, King Banaian...The Constitution is just a statistical model, see?
February 12, 2009 10:45 PM | Reply | Permalink
Damn, I always get here when most of you have gone home. Oh well. Here goes.
We elected Obama in part because the RepublIcan't party defied newtonian, quantum, and unified field theory physics and transformed itself into a vessel that was both full of shit and a vacuum.
At this point we must all hope Coleman loses this case and goes all the way to the Supremes. Then we must pray for a Coleman victory. That will pave the way to impeach the five motherfuckers, wipe out the conservative court in one swell foop, and enjoy the spectacle of Coleman getting thrown out of the senate because he's going to jail.
This has been Al's plan all along. Hennepin County ditched 3,500 ballots in the Mississippi on election night; I remember falling asleep at 2 AM with a 4000 vote lead and waking up the next morning down by a couple hundred.
We think big in Minnesota. This has been our plan all along. Join us. Pull for an overtime victory for Norm with a big assist from the SCOTUS. And then watch us wipe out the Bushsaster in, what, four months? Fucking brilliant.
It's your world Al. Please save a custodial position for me when you reach your Secret Island Fortress.
Over and Out.
February 13, 2009 12:43 AM | Reply | Permalink
"one swell foop" Thats just...
February 13, 2009 7:53 AM | Reply | Permalink
Where are the cries for "tort reform"? Oh yeah, tort reform is only for the "little people" who try for justice. Not for idiots like Coal Man.
February 13, 2009 2:36 AM | Reply | Permalink
Been mulling over a real dumb idea but I have to throw it out: All of these arguments about equal protection are centered on the impossibility of exact uniformity in judging acceptability of absentee balots. Could these guys be gunning for getting absentee ballots declared unconstitutional on the grounds that no system can be devised to assure equal protection?
After all, absentee ballots do tilt (unfairly; any thing that helps Democrats is inherenly unfair) toward Democrats. Kill two birds... Keep a Dem seat tied up and maybe get a whole class of troublesome rable kicked out of the polling place.
February 13, 2009 8:10 AM | Reply | Permalink
The real question here is does Coleman have actual evidence of "improperly-accepted ballots" and to what extent?
As Friedberg said: "if it can be shown that a significant number of similarly-illegal ballots were counted elsewhere." That is a big IF. Proof is what is needed not their statistical "possibility".
There has been plenty of statistical "proof" Republicans have been gaming elections for years. Yet that has not been enough evidence for the courts to take any action on it.
February 13, 2009 10:50 AM | Reply | Permalink