Court Rules On Franken Effort To Limit Coleman's Evidence: Yes And No
The Minnesota election court just handed down a ruling on a key motion by Al Franken's legal team, seeking to limit the scope of Norm Coleman's inquiry into rejected absentee ballots.
And it turns out they've split the difference. Coleman's lawyers have alternately been talking about looking at all 11,000 remaining absentee ballots that have been rejected, or just looking at 4,797 of them, while Franken wants to limit Coleman to a prior list of 654.
The court is allowing Coleman to continue presenting evidence on the 4,797, which had been disclosed to the Franken camp in the summary judgment filings before the trial began. But that's it.
It's hard to tell what impact this might have. These ballots are obviously cherry-picked for votes that Coleman's people believe would break heavily his way, but it seems very unlikely that they would actually be able to get a great deal of them admitted. They've been bringing some of those same aggrieved voters to the witness stand, to plead for their ballots -- and in quite a few cases they've been total duds.
Speaking to reporters earlier, head Franken lawyer Marc Elias said the decision was neither a loss nor a win for his own side, and was glad that the universe of ballots that Coleman would be allowed to plead was now definite and limited. "And I suspect the number that were improperly-rejected will be quite a bit smaller," Elias said.
The Franken campaign is also getting ready to present evidence on 771 votes that they've selected, too, and we'll see how thoroughly they did their homework once their turn comes up.
Late Update: At his own press conference, Coleman lawyer Ben Ginsberg proclaimed the decision to have been a big win, and predicted that "the vast majority of them are valid votes that will come in."
"With the inclusion of these ballots," Ginsberg added later, "we'll know that all the valid votes are counted, as long as they're allowed in over all the procedural -- the picky motions of the Franken campaign."
(Special thanks to The Uptake for carrying the Elias and Ginsberg pressers.)
Josh
Matt
Eric
Brian
If this is anything like the recount challenges, Franken will net about the same number of votes from his 771 as Coleman does from his 4,800.
February 3, 2009 4:59 PM | Reply | Permalink
Um, is that what Nate Silver is projecting?
February 3, 2009 5:02 PM | Reply | Permalink
I don't think Nate Silver has projected anything on this yet, as it just happened. But if you watched Coleman's recount challenges, they were mostly pretty lame. He challenged about twice as many as Franken and wound up with about the same number of net votes. I'd be shocked if there was much merit in these 4,800. He scoured the list of absentee ballots and came up with his best cases to put on the witness stand and a large chunk of those turned out to be correctly rejected.
February 3, 2009 5:16 PM | Reply | Permalink
This in no way means a recount/re-review on this pool of rejected ballots--just that the pool of possible admissions just got reduced by half?
February 3, 2009 5:26 PM | Reply | Permalink
I would think of this as the first cut. There will be more. In the end they'll probably decide to review some number of ballots from both sides. If they find that some counties used improper standards, like the DL number, they'll probably agree to review those. If they find other pools of ballots were rejected for improper reasons, they'll review those. I don't think they're going to allow cherry-picking. If an improper standard was found to be used in one county, then all of the ballots rejected for that reason will be reviewed.
The real question is how small that pool eventually gets. If it starts getting down to 1000, the odds of Coleman picking up 225 votes becomes pretty small. If they also agree to review some of the ballots Franken claims were improperly rejected (how can they not?), it's goodnight Norm.
February 3, 2009 5:45 PM | Reply | Permalink
Good--then this process actually has some logic to it, with a determinable end. Plus, I now see why Marc Elias said that this was neither good or bad for Franken. It just moved the trial a little further along.
February 3, 2009 5:55 PM | Reply | Permalink
While this whole process seems interminably long, part of the reason Coleman is so boxed in right now is that everyone involved with it has done a painstakingly good job of getting it right. I have no doubt that these judges will get it right in the end, and that's more important than being quick.
February 3, 2009 6:07 PM | Reply | Permalink
Amen!
Plus, as much as I really want to see Al Franken take his seat in the Senate sooner rather than later, I have to admit that I really am enjoying the spectacle of this thing. It's such a pleasure watching Coleman prove every day what a horse's rump he is!
February 3, 2009 6:58 PM | Reply | Permalink
Is Coleman boxed in - yet? If we knew the variables, we might be able to make the claim - with certainty. In my opinion, we do not yet know whether Franken will prove to be victorious -- though I see no reason for Coleman to be optimistic. Coleman seems to have been perusing two basic strategy.
First, his legal team has been seeking to have the Election Contest Court rule against counting various votes which the Canvassing Board tallied in Franken's favor. (So far, this attempt to negate Franken votes not seem to be working all that well).
Second, the Coleman teams seems to have been seeking to obtain a ruling from the Election Contest Court permitting a review of wrongly rejected absentee ballots (with the goal being "as many as possible" up to around 12,000).
The Coleman team seems to have been laying the groundwork for its case by implying that failure to allow for a review of all rejected absentee ballots would constitute a violation of the "equal projection clause" (the idea being that each and every voter should have the equal right to his or her vote reviewed in order to ensure that the vote was "legal" and that the intent of the vote was "accurately tallied".
My assumption is that if there were grounds for believing that each and every vote had not been given "equal project", then there might be grounds for an appeal to the Minnesota Supreme Court (and beyond) which could lead to a nullification of the election and an ensuing constitutional crisis -- a crisis because Minnesota election law does not have a provision for a "re-vote".
Perhaps with the equal projects concern in mind, the The Election Contest Court ruled today that a universe of 4,797 rejected absentee ballots would be made available for review. Note: only those that rejected because of errors made by election judges would be consider for recount. See Jay Weiner's report in MNPost for a report on the ruling
What does this ruling mean? It means that depending of the number of ballots that are found to have been wrongly rejected and depending on whether they are ballots for Coleman, Norm Coleman "may" have have a better chance of winning the election -- than he would have had if the Court had allowed for only 650 or so.
Will the wrongly rejected fall in favor of Franken or of Coleman? We do not know for certain. But if the ballots are from precincts that trended towards Franken, then Franken may see his lead actual grow. Today at Kos, The Big E has a dairy that provides a through and seemly solid analysis of the the universe of ballots under consideration -- and provides reasons to believe that more wrongly rejected absentee ballots are likely to break for Coleman than Franken. Also, jpmassar at Kos also did a post exploring the odd of Coleman winning under various conditions. Given their analysis, it would seem Coleman is grasping for straw.
The good news about the process is that it will if Franken does win, it will be very difficult for Republican wingnuts to make any hay with the idea that the election was "stolen" or that Franken's victory was "not legitimate". In other words, not only Franken, but also "electoral integrity" will be the winners. That's my hope.
A parenthetic note: if I remember correctly, the Coleman team wanted have the Court allow for the review of up to 12,000 ballots-- which is far less than the 4,797. I do not know why the Election Contest Court ruled for the smaller number; however, if in the Court's view of significant number are found to have wrongfully rejected ballots, I wonder whether -- in the name of equal protection -- the Court might wish to expand the universe of ballots under consideration to the 12,000 or so which the Coleman team had be arguing for.)
What about the big idea that Eric Kleefeld raised on Feb 2 (and the made its way over to Kos): "Is Coleman Aiming for a Do-Over Election?" I, myself, would like to know ... does that idea have any creditability given the fact that Minnesota election law doesn't allow for a re-vote.
February 3, 2009 10:51 PM | Reply | Permalink
Make. Norm. stop.
February 3, 2009 5:34 PM | Reply | Permalink