Franken Team Tries To Force Coleman To Speed It Up -- Judges Say No
The Franken legal team just made another shot at forcing Norm Coleman to pick the up the pace of this trial -- and missed.
Franken lawyer David Lillehaug objected to the Coleman team's procedure so far of reviewing ballots one by one, withdrawing some along the way and keeping their complaint that it should be counted for others. "The problem is the contestant has really not sat down and decided which ballots they are going to go through and which they are not," said Lillehaug. "And that is why this trial is taking so long."
Lillehaug called for Coleman to be barred from introducing ballots until he first answered the Franken camp's interrogatories and conducted a more thorough sorting process, paring the list down.
Coleman lawyer James Langdon responded they have given sufficient information on these ballots. "If they're really curious as to how many of these we're serious about, the short answer is all of them," said Langdon, though he added that something might come up during questioning of county officials that would cause them to withdraw a claim.
The judges went into a recess and just came back with their answer: The Franken camp's motion is denied. Instead, Judge Kurt Marben said the panel and the two sides will discuss later today whether there is any more expedient way of doing this.














The US Senate is dead from the neck up. Could the start helping Al out a bit by pointing out the Republicans obstruction on this matter?
February 9, 2009 12:11 PM | Reply | Permalink
US Senate is dead from the neck up
That implies they hearts and balls, which they have yet to show.
February 9, 2009 12:30 PM | Reply | Permalink
How are those Coleman indictments coming along?
February 9, 2009 12:24 PM | Reply | Permalink
FBI probably stalled the investigation as to not look politically motivated.
February 9, 2009 12:33 PM | Reply | Permalink
WTF is wrong with these judges? Do they plan to let this fucker Coleman 'filibuster' the freaking election for 6 effing years?
February 9, 2009 12:34 PM | Reply | Permalink
No kidding. "Minnesota" will replace "Florida" as the codeword for screwed up elections.
February 9, 2009 1:15 PM | Reply | Permalink
I don't think MN can be blamed for Coleman's craziness.
February 9, 2009 2:07 PM | Reply | Permalink
casey,
I think its a 3 judge panel and either 2 or 3 of them are Republicans. They may be setting this up to give it to Coleman.
February 9, 2009 3:58 PM | Reply | Permalink
This is so stupid, there's no way that Coleman gets the election overturned. He's just wasting money (his, Franken's, and the US taxpayers) and time. I think it's absolutely ridiculous that he can't move on with his life.
February 9, 2009 12:55 PM | Reply | Permalink
Anything from the MN-SC on Franken's motion to get certification? That would be the most expeditious way to end this nonsense.
February 9, 2009 1:03 PM | Reply | Permalink
Shot down, unfortunately. To the federal SC?
February 9, 2009 1:21 PM | Reply | Permalink
Actually, upon a further search it seems I stand corrected. Odd since I swear I heard on NPR on Friday that they shot it down. Anyways, it seems the MN-SC hasn't issued a ruling yet.
February 9, 2009 1:34 PM | Reply | Permalink
There I was all mortified for nothing. I guess that's the problem with listening to news while you work. ;)
February 9, 2009 1:36 PM | Reply | Permalink
I suspect that the court is holding that as a hammer to use against Coleman. In chambers, they are going to say to Coleman,
"You have two choices;
1) you show us in advance where you're going and why we you think you're going to win with that strategy and evidence, and you tell us how you are going to get there quickly; or
2) we are going to certify Franken now, and you get to continue with your day (week, month, year?) in court at your own pace; and
Oh, by the way, if you proceed, and we deem your case to be frivolous or not warranted by existing case law, or a good faith and legitimate argument why current case law should be expanded, then we have the right to sanction you, including making you pay for Franken's entire legal fees incurred on this trial"
February 9, 2009 1:26 PM | Reply | Permalink
We may get a better idea after this afternoon's scheduling conference. Coleman's strategy has become all too obvious (as if it wasn't before). They have to find some way to put limits on his "case" or they'll be there forever. So far they've shown absolutely no inclination to do so.
February 9, 2009 2:13 PM | Reply | Permalink
I don't see how the Minnesota Supreme Court could call the parties into chambers at this point. It wouldn't surprise me, though, if they sat on the petition for a bit and waited to see how quickly matters were proceeding in the trial court.
February 9, 2009 2:14 PM | Reply | Permalink
Here is a link to the Public docket for the Minnesota Supreme Court.
The case number for this matter is A090064.
Nothing has happened since the Court heard argument.
February 9, 2009 2:00 PM | Reply | Permalink
Any sense from the Minnesota general public if they're getting tired of the triple Judge Ito trial? Is there any specific thing they can do to speed this up?
February 9, 2009 1:06 PM | Reply | Permalink
Yes and no, unfortunately. Pawlenty is a tool who is apparently fine with MN having only one Senator.
February 9, 2009 1:22 PM | Reply | Permalink
When was this announced? I haven't heard squat from them since they said a decision would be "forthcoming".
February 9, 2009 1:27 PM | Reply | Permalink
Oops...wrong comment. I was asking about the MN-SC.
February 9, 2009 1:28 PM | Reply | Permalink
Can't the MN legislature impeach Pawlenty? What the heck, we've just seen it done for political differences in ILL. (Not that I'm saying Blago didn't deserve it, but if Pawlenty keeps Franken from being seated, kick him the hell out.
February 9, 2009 5:35 PM | Reply | Permalink
I was thinking of donating to the Coleman Legal Fund but just threw $20 out my window instead. It saved me money on a stamp.
February 9, 2009 1:09 PM | Reply | Permalink
This actually is a smart move on the judges part. One of the primary basis for appeal would be if the judges improperly precluded evidence. Basically, the motion at issue was to preclude evidence which is always problematic. The preclusion of evidence would give coleman a legitimate grounds for appeal. What they need to do is come up with a plan, that coleman signs off on, to somehow expedite the process and at the same time cutting off a ground for appeal by coleman.
It can be done and I would guess that the judges will come up with something. They have to, because this is really beyond absurd.
February 9, 2009 1:13 PM | Reply | Permalink
Coleman will never sign off on any plan that accelerates this turkey. It's going to have to be imposed. Let him appeal. The appeal goes to the MN-SC, and they have not shown the same willingness to allow Coleman's dilatory tactics. They'll dispose of the appeal in a couple of days.
February 9, 2009 1:18 PM | Reply | Permalink
You are probably right. The judges should just make sure that what ever plan they impose seems "fair and balanced." It's actually better if it comes from the panel as opposed to being instigated by franken.
February 9, 2009 1:20 PM | Reply | Permalink
Scalia is even now honing his arguments for Kennedy to be the fifth vote in the latest banana-republic hijinks. Also boning up on why the Constitutional prohibition against such antics somehow doesn't apply here, great jurist that he is.
February 10, 2009 5:33 AM | Reply | Permalink
The roadmap for Coleman appears to be an endless legal process. Unless the MNSC accepts Franken's legal stance on being temporarily certified, he may not be seated until football season (if even then).
February 9, 2009 1:19 PM | Reply | Permalink
I think the judges adopted a policy of giving Coleman enough rope to hang himself, and they are just waiting this out a little longer. There is absolutely no way the court will allow Coleman to plod through almost 5,000 ballots without showing in advance what the errors are.
They are also mindful of the fact that any decision they make against Coleman (especially ruling in Franken's favor prior to a final resolution on the merits) creates another appeal issue.
You put those two ideas together, and the decision of the court to 1) deny Franken's motion, and then 2) demand a meeting with the attorneys to address the issue, indicates that the court is looking for some way to cut this off or substantially reduce the timeline, without giving any extra handles to Coleman.
Coleman's legal team has failed to provide one of the most fundamental elements in any trial: the need to tell a simple, understandable story that articulates what is wrong with what happened, and how to make it right. "Count every uncounted ballot, for unknown reasons, even if I previously argued to keep them out and even if they've been reviewed 2 or 3 times already" doesn't cut it.
Franken's is a lot better: "the votes were counted, recounted, reviewed and certified - the results were fair, proper and as accurate as reasonably can be expected, and Coleman's case should be dismissed since he can't articulate or prove any significant reversible error."
February 9, 2009 1:20 PM | Reply | Permalink
Agreed. Good observations.
February 9, 2009 2:11 PM | Reply | Permalink
"...indicates that the court is looking for some way to cut this off or substantially reduce the timeline, without giving any extra handles to Coleman."
I'd feel a lot more confident that this is the case if they hadn't spent the last two weeks letting Coleman play the legal equivalent of Calvinball.
February 9, 2009 2:16 PM | Reply | Permalink
I would add to this a little pithy request from the judges at the tail end of Last Friday's Court Session. They asked both sides for brief's on the question of whether any unregistered voter could cast a legal ballot? If I remember rightly, they asked for return of these briefs on Tuesday this week. I suspect they could hold a public session with arguments on this -- or they could do it in Chambers, but the point is, if they rule that in no case can an unregistered voter's ballot be legal -- they take out a good many of the exhibits the Coleman side is offering, questioning, and then sometimes removing after time consuming discussion.
But I agree with Mr. E. --- the process is being allowed to go forward at a crawl because they are protecting the case from appeal that Coleman's evidence was precluded from coming into the case.
Erik -- a suggestion. Do an interview with Representative Phyllis Kahn regarding the bill she is offering, and which will have a public hearing next week, I believe. It is not only interesting as legislative strategy, but as legal theory. Kahn is one of the most senior members of the State House -- first elected in 1972.
February 9, 2009 2:25 PM | Reply | Permalink
I guess one way to protect a case from appeal is to let it go on forever.
February 9, 2009 3:14 PM | Reply | Permalink
Again, an excellent post.
February 15, 2009 9:43 PM | Reply | Permalink
Time to crank up the dem noise machine, and to start painting Coleman as the soon to be indicted felon that he is.
February 9, 2009 1:29 PM | Reply | Permalink
what Dem noise machine? I wish we did have a noise machine!
February 9, 2009 10:45 PM | Reply | Permalink
I can understand judges not wanting to be overturned on appeal, but who's to say they would be? Appeals are not automatic reversals.
Giving a man enough rope to hang him ultimately winds up in putting the bastard's feet firmly on the ground.
February 9, 2009 5:41 PM | Reply | Permalink
Constitution of the Unites States of America
Article I, Section 5: Each House shall be the judge of the elections, returns, and qualifications of its own members . . .
The Minnesota election court is performing a recount of the recount. This is nothing more than judicial activism of the most blatant variety---the court trespassing into territory specifically and explicitly granted to another branch of government, namely, the Senate itself.
Maybe somebody can unearth past statements from Norm Coleman denouncing "activist judges" and calling for judges to "respect the original intent of the Framers."
If the Senate Democratic leadership weren't such feckless, inept, cowardly idiots, they would have exerted their Constitutional authority by now and either seated Franken or at least taken the dispute into their own jurisdiction where it clearly belongs.
February 9, 2009 8:24 PM | Reply | Permalink
I promise you that Anton Scalia is even now cooking up some kangaroo-court argument to sell to tie-breaker Kennedy as to why the plain language of the Constitution somehow does not apply when the former's favorite candidate might otherwise lose.
February 10, 2009 5:37 AM | Reply | Permalink
"The Minnesota election court is performing a recount of the recount. This is nothing more than judicial activism of the most blatant variety---the court trespassing into territory specifically and explicitly granted to another branch of government, namely, the Senate itself."
Actually the Contest Court is not recounting the recount. Coleman is contending that there are valid ballots among those excluded because the voters did not complete the required certification (such as being registered, or signing the absentee certification, etc.) Those ballots were never counted, either on election night or during the recount. Much as I decry the slow process, it is fully within Minnesota Election Law which allows a candidate to bring a contest after the recount is complete and certified. Contests require evidence and argument other than just the face of the ballot, which is why it is done in a civil court, and not before a Canvass Board.
Mark Richie, in his speech in DC on Saturday before the Secretary of States conference, said he estimated the whole exercise probably would find another hundred ballots that can legally be counted via the contest process. I get the sense that the Judges are trying to get the parties to agree to speed things up a little -- and they might impose their own speed-up solution if no agreement is forthcoming. In fact, keeping the record relatively appeal proof probably speeds this up in the long run.
February 9, 2009 10:08 PM | Reply | Permalink