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Coleman Lawyer To Court: We Don't Want To Un-Count Votes -- But You Have To

In addition to this morning's fireworks in the Minnesota courtroom, the court also just heard arguments on a very interesting motion from Team Coleman: That the court must take their ruling from two weeks ago to apply strict standards for letting in new ballots, and apply it retroactively to all the absentee ballots that were let in on Election Night.

The obvious problem here: There is no way to directly subtract votes, because the envelopes and the ballots were de-coupled on Election Night, and there is no way to reunite them.

Coleman lawyer James Langdon suggested a possible remedy -- though he's not advocating this yet -- would be to do a pro-rata reduction. That would be to take the number of invalid ballot envelopes, and proportionately deduct votes from each candidate according to the county or precinct results. Later on, he was even clearer in saying this was the only remedy.

Langdon -- who disliked the strict-standards ruling ever since it came out -- said the campaign didn't really want to do it. "We would still prefer to have the obverse, to have the standard that was applied on Election Night," said Langdon, "which the evidence has demonstrated is a substantial compliance standard, which was applied differently from county to county."

Langdon said this comes down to both Equal Protection under the 14th Amendment, and the basic statutory definition itself: "At the end of the day the court is left with a conundrum as to how it can issue a judgment saying who got the highest number of legally-cast ballots."

Judge Denise Reilly later told Langdon that she couldn't find any previous instance in Minnesota cases of a reduction being performed. Langdon said he had seen one, and could get back to her with the citation.

In short, Team Coleman is playing a legal game of chicken with the judges, trying to get them to reverse that earlier ruling, and to otherwise muddy the waters.

Franken lawyer Marc Elias said that Team Coleman's real goal was to cast doubt on the entire election result and declare that we can't know what really happened, which they had denied earlier in the case.

"If Mr. Langdon believes that this court cannot determine who received the most legally-cast votes, then this court should dismiss his complaints" Elias said, and send the dispute to the United States Senate.

Elias said this new request has no basis in law -- and that it's an out-of-order last-minute surprise request by Coleman. "Pro-rata reduction? Where in the contest statute is pro-rata reduction? Where in their pleadings is pro-rata reduction?" he asked. "Pro-rata reduction on a statewide basis? On a county basis, on a precinct basis, on a sub-precinct basis? Targeted on a cherry-picked basis from their voter file they've used for the rest of their pleadings?"


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Coleman's camp is just muddying the waters to show that there simply can be no clear outcome.

Crazy prediction of something the GOP will try - After this case is decided and Franken is still the winner that the Senate GOP will put forth a compromise that they'll seat Franken provisionally (while Coleman appeals) if Franken agrees to step down and run in a special election in 2010 (should Coleman's appeals go nowhere, and that should Coleman win on appeals he'd do the same).


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... if Franken agrees to step down and run in a special election in 2010...

And who's gonna pay for this election?

And if Al says yes then changes his mind?

Not gonna happen.  The six-year term for elected senators is a pretty strong Constitutional mandate.  It's what the Supremes cited when they struck down state-imposed term-limits for Congressional offices.

Also of interest (if it's true)...  I've heard that MN law specifies a coin toss in the case of a tied election.  That's a pretty strong indication that almost anything is preferable to a do-over election.

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Also, contrary to the impression of many people who've commented on the Burris and Franken imbroglios, special elections don't just up and happen because judges order it or people enter into an agreement-i.e. a private contract-about it. They don't just materialize out of thin air. Elections only occur purusant to actual statutes passed by actual state legislatures and signed by actual governors (unless vetoed and overridden) and then funded by actual appopriations made by said legislators.

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And here, verbatim, is the reaction Coleman will receive from the Minn. Legislature if he requests that they pass such a law. "Ha, ha ha ha ha! Stop it, you're killing us here".

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I'm sure that's just fine with the GOP. We need a special do-over election, but no hurry. Take your time. If you don't get around to it until next year, that's OK with us.

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"Count all these votes- but uncount these other votes"


I can't believe the judges haven't started bashing themselves on the head with their gavels. This would drive me insane. They have the patience of saints.

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I can't believe they haven't started bashing Coleman's lawyers with the gavels. Even if I was supporting Coleman (or maybe especially if I was), I would be doing that after this much foolishness from them.

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Anyone know a hitman?

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Coleman's team is absurdly good at own goals. The only people who want to stop them, other than the folks who think they've wasted enough court time, are the Republicans who are looking worse and worse.

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In short, Team Coleman is playing a legal game of chicken with the judges, trying to get them to reverse that earlier ruling, and to otherwise muddy the waters.

I don't think it's the whole team at this point... I think Coleman's lawyers are giving Coleman the runaround to sap as much money out of his campaign coffers as possible. They know they don't have a chance, but they're paid by the hour.

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Nah, it's the national GOP who are benefiting by the hour for however long they keep Franken out of the Senate who are behind this.

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I hope the judges are smarter than to fall for this. It's one of the oldest debate tricks in the books. You set up a false choice between what you want and some other impossible or untenable choice, then try to imply that those are the only two choices.

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Pro-rata reduction? Seriously?
So do you round up or down when your tally for a candidate in a particular precinct is, say, minus-9.5?
Or do you total up those "partial" votes statewide, and subtract X virtual votes? Even though they no longer represent actual people.
This is about as far from "count every legally cast vote" as you can get. It also has no basis -- and I'm sure no precedent -- in law. Just like the "revote" proposal.
I think Coleman has adopted a "Chicago 7" strategy: provoke the judges into angry outbursts, such that a mistrial ensues. Then they can start the whole process over again.
I doubt it will work; the judges are on to his game.

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I want to hear Coleman explain how he can get a fair do-over election after having thoroughly trashed the entire process for months now. All he's been saying is the entire process is incapable of producing a fair result. Now he wants to use that same system to get another shot at winning.

He has gamed the entire process so if there was to be another election and he lost again he will simply reiterate how f*cked up the system is and contest *that* election for another 6 months.

I don't understand why the court hasn't thrown this case out with extreme prejudice against Coleman. Feh.

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I expect its because the Minnesota Rules of Civil Procedure most likely do not have a provision that empowers a judge just up and throw a plaintiff's case out anytime it wants. They can dismiss the case when the plaintiff rests on a motion for directed verdict by the defendant. They cannot do it before then. And they won't do it then, either. They'll wait to hear the Franken's evidence as well and then rule against Norm on the merits.

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So a plaintiff can lie, withhold evidence, file a motion, ask for it to be reversed, then file it again and repeat that cycle over and over then say the whole process is screwed up and cry crocodile tears for the people of Minnesota because they aren't represented in Washington and the court can do nothing? Why isn't there a way for them to say Coleman is not litigating in good faith and merely trying to deny the election for political purposes (as the huge donations Coleman has received from Republicans to keep this circus going) and dismiss the entire case? I'm sure it's done all the time; it's the favorite Republican complaint--frivolous lawsuits. I'm sure glad I don't live in Minnesota.

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I don't think the court is completely powerless to suffer dilatory tactics. They must have some means to force a plaintiff to actually put on a case.

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I don't know if anyone will see this: but couldn't the judges impose a timeline or performance date for the Coleman Team? Then, if they do not meet said date or timeline hold them in contempt of court?

It'll never happen, of course. However, that would be awesome.

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The whole point is, "If I can't win, I'm going to try and keep anyone else from winning!" Just stall and keep Franken from being seated, and at least it prevents the Dems from having one more vote for as long as possible.

It's disgusting, but that's how the Repubs play...

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"The court-approved stipulation that the 933 votes were lawfully cast and counted, and agreement to dismiss, with prejudice, all claims made against the 933 ballots amounted to a final ruling by the court that the 933 were lawfully cast ballots. Coleman waived the right to so much as even suggest that any of those 933 ballots were not lawfully cast. Coleman's motion is frivolous and, as suggested by Franken's opposition [PDF], warrants the imposition of sanctions."

http://www.bradblog.com/?p=6934

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