Coleman Wants To Count Votes Previously Thrown Out -- By Himself
In the Minnesota election court this afternoon, Franken lawyer Kevin Hamilton continued to demonstrate how the Coleman campaign is now working to get ballots put into the count, that they previously insisted were not legal votes.
Hamilton reviewed a particular ballot that had been shown earlier to Anoka County elections manager Rachel Smith, for which the Coleman campaign is arguing that it shouldn't have been excluded simply because the voter signed the envelope in the wrong place.
Smith herself had changed her mind on this issue when reviewing the rejected ballots this past December, and she submitted it to the campaigns for further review. It turned out it was objected to by a campaign, though Smith couldn't remember which one, keeping it out of the count.
Hamilton got out the form submitted by the campaign that vetoed it -- the Coleman campaign, objecting that the signature had been put on the wrong line.
Hamilton then went over several more examples of ballots that had been vetoed by the Coleman campaign back in December, and which they are now saying should be counted.
This all gets into the related legal doctrines of estoppel and invited error, which the Franken campaign has been attempting to use to drag down Coleman's whole case -- essentially arguing that coleman is not allowed to argue whole new legal positions just because his old ones have put him in a hole. The act of rejecting a ballot, and then turning around and asking for it to be counted, would seem to fit neatly into this category.
One other thing to think about, which I'd argued yesterday: Coleman has been calling as witnesses certain rejected absentee voters, who when pressed will admit they were contacted and screened by the Republican Party as Coleman supporters. But those calls didn't come until about three weeks ago, after the absentee-sorting process was already over. Could the Coleman people have found out too late that they were shooting down votes for themselves?
Josh
Matt
Eric
Brian
Paging Alan Page...paging Alan Page...get your pads on and get down here. This is descending into high farce with no end in sight. Coleman has had his day in court, and he clearly has no case. He's making a mockery of the whole system. It's time for an injection of sanity.
February 6, 2009 4:31 PM | Reply | Permalink
As the trial progresses, I've become dispirtited and have lost respect for the three judges. As any other lawyer will tell you, if you don't preserve error in any other administrative proceeding, your case is tossed in a later court review no matter how fair your argument is. Coleman has not only not preserved error on absentee ballots, he argued the exact opposite to what he's doing now.
The Court has allowed this trial to devolve into a prolonged and boring circus that is depriving the Senate of a much needed progressive vote.
February 6, 2009 4:41 PM | Reply | Permalink
But isn't an election case fundamentally different in that there is a 3rd party, i.e. the voters, whose rights supersede those of either of the litigants? Given evidence that a voter had his legally cast vote rejected for improper reasons, how can they not give relief to that voter, irrespective of any actions of the litigants?
It seems to me that they have a better argument for dismissing this case in that Coleman has not shown anything more than a handful of random errors which do not satisfy his burden of proof that counting these would change the outcome of the election, and that further continuance of this suit would do real and irreparable harm to the people of Minnesota.
February 6, 2009 4:54 PM | Reply | Permalink
There's a procedure for that, and it's what the 61 Franken voters timely filed at the beginning of this case that was consolidated into this contest.
Anyone else missed the boat.
February 6, 2009 4:59 PM | Reply | Permalink
Fair enough, but how would voters who had their ballots rejected know about it? Absent some reasonable means for them to know, I can see the court assuming some advocacy for them. The overriding principle in any election contest has always been that legally cast votes should be counted whenever possible.
February 6, 2009 5:08 PM | Reply | Permalink
Well that's why estoppel and invited error are so important. Franken identified and notified the voters in a timely manner. Coleman didn't and now the court allows him to expand the unopened absentee voting pool from 654 to 4900?! The Court is letting Coleman play Calvinball.
February 6, 2009 5:23 PM | Reply | Permalink
LOL...Calvinball is a pretty apt description.
February 6, 2009 5:49 PM | Reply | Permalink
They could have checked online, I believe (I'm not in MN, but I voted absentee in my state and checked status online). They certainly could have phoned or walked in, to ask.
I think think this is a valid point. The self-disenfranchised voters had time to fix their own mistakes or appeal. Those who did neither have no legit beef in the current Court case. Those who did might have a beef.
Has the deferred Franken motion to dismiss been heard yet? And can it be amended to reference the recent circus? If what Coleman has been presenting is his best evidence and strongest case, I'd think the court might easily rule for Franken.
February 6, 2009 5:55 PM | Reply | Permalink
magster:
Are you watching the trial in person or from afar? I am also a lawyer, but I have no experience with elections issues. I can only draw from my own experience which is that judges tend to let the side that they are going to screw make all of their arguments before they screw them.
No doubt, Coleman's team is throwing spagetti on the wall, but isn't this all about demonstrating error and trying to meet the threshold for relief? Sometimes you never know which part of the spagetti will stick when you throw it . . .
If the judges let everything in and THEN screw Coleman, then I imagine it would be a matter of discretion and not a matter of law on appeal = bad appeal for Coleman.
February 6, 2009 6:40 PM | Reply | Permalink
I agree. As much as I would like to put the blame on Team Coleman, the fact is thye are doing their jobs the best they can. The problem is the 3 judge panel which appear to have lost control over these proceedings from the getgo.
This Minnesota attitude of "We are Fair" and "We Aren't Florida" is being taken to absurd extremes. In fact in many ways this process is worse than Florida simply because it never picked a winner to begin with.
In any other State, Franken is already the seated Senator from Minnesota and Coleman would simply be portrayed as a sore loser.
February 7, 2009 10:12 AM | Reply | Permalink
There is no reason why the court is allowing this dog and pony show to continue. I wonder if partisan politics are involved behind the scenes - GOP Operative to Republican-appointed Judge "We know he doesn't have a case and you'll ultimately have to rule against him, just let him drag it out until after the stimulus package is passed".
February 6, 2009 4:44 PM | Reply | Permalink
Agreed. This is one way for the GOP to keep a Dem vote off the Senate rolls. No doubt they've let Coleman know he's being a good company man.
Where's the investigation on his taking illegal donations?? C'mon DOJ!
February 6, 2009 5:39 PM | Reply | Permalink
Shouldn't there be some minimal level of competence and reasonableness for a state's judicial system? Minnesota should resolve this issue NOW and stop the mocking of due process.
February 6, 2009 6:27 PM | Reply | Permalink
I think criticizing these judges is unfair. They were picked by Chief Justice Page to sit on this tribunal and my understanding is that they are very well regarded judges - no hacks and no extreme partisans. And Minnesota has a very strange and unique voting procedure which has a recount and then an explicit court proceeding (where the law says a senator cannot be certified as a winner until the conclusion of the court proceeding). Is this a great system? No but the problem lies with the statutes, not with the judges who are trying to administer them. The Coleman people were complaining like crazy while the recount dragged out. The Franken people are now doing the same while the trial drags out. Both complaints are unfounded. Let the process conclude according to Minnesota law. It still looks highly likely that Franken will prevail but, according to Minnesota law, Coleman is entitled to this current proceeding.
February 6, 2009 7:10 PM | Reply | Permalink
Probably the one single thing that made sure Gov Gregoire got elected in 2004 was that within a couple days of the election, the State Party contacted supporters whose absentee ballots had been rejected on grounds of not being signed and got them to follow up with their county auditors to remedy the problem. They had to file suit, IIRC, to get the names of those rejected first, but they did it right off the bat and it ultimately was more than the margin of victory.
February 6, 2009 7:27 PM | Reply | Permalink
The Court is guilty of delay more than anything else. Briefing and counting do not need to take this long when the consequence is an open seat during the most important vote the Senate has considered in decades. The issue that galls me is that the court doesn't hold late night and weekend hearings under these circumstances.
On the issue of the "third party" (the public) -- electoral battles are normally fought out by the candidates. If the public is considered a "party" it should be represented by the state's attorney general or by amicus briefs (non-party "friends of the court" briefs.) The court has no business substituting its own advocacy arguments on behalf of the "public" except to the extent it is following "the law."
February 7, 2009 4:44 PM | Reply | Permalink
There is no reason for this court proceeding to continue. COLEMAN YOU LOST AND THE JUDGE IS JUST PLAYING POLITICS BY DELAYING THE SEATING OF FRANKEN. THE GOP NEEDS TO GET OVER IT. THEY LOST BIG TIME AND ARE TRYING TO UNDERMINE THE OBAMA'S STIMULATION LEGISLATION BY HOLDING BACK THE SEATING OF FRANKIN. I don't understand the politics of MN, but this is getting out of hand.
February 7, 2009 7:41 PM | Reply | Permalink
The Coleman treatment by the press is quite different than that, that Blogo recent received; though equally ridiculous and underhanded. It appears that the press is under reporting on Coleman's ill fated tactics and giving him a pass. If it were not for internet blog updates, the foolishness of Coleman's lawyers would not even be known.
It is time that these incidents and blogoish like tactics be given the same circus atmosphere that it deserves.
February 8, 2009 3:25 AM | Reply | Permalink