Minnesota Court Denies Coleman's Attempt To Un-Count Ballots He'd Previously Agreed To
The Minnesota election court has just handed down another key ruling, totally denying Norm Coleman's attempt to undo his previous agreement that 933 previously-rejected absentee ballots be included in the recount -- and which favored Al Franken by a 176-vote margin.
The two campaigns had previously entered into a stipulated agreement three weeks ago, which had been formalized by the court through an order declaring the ballots were legal, and directing the Secretary of State's office to redact identifying numbers that had been placed on the ballots and their envelopes just in case they were to be removed later -- an action that had also violated the secret ballot.
But then Coleman filed a motion on Friday, asking for an injunction to stop the redaction of those identifying numbers -- a declaration that they were nullifying their agreement, on the grounds that the court's ruling for strict standards in accepting additional rejected absentee ballots had to be applied retroactively.
After some very heated arguments on Friday, the court has denied the injunction -- and declared that Coleman is stuck with the agreement that he made, that these ballots were legal:
The binding stipulation and Order of February 3, 2009 are dispositive of Contestants' motion. Both campaigns have been completely and ably represented by counsel throughout these proceedings. The stipulation was drafted by counsel and signed by sophisticated parties familiar with the subject matter. The Court presumes the parties were apprised of the risks and benefits associated with entering into this agreement.
At the time the Coleman camp entered into this agreement three weeks ago, they were making a bet that they could leverage these ballots towards getting more lenient standards to count other rejected ballots that they wanted put in. Not only did they lose that wager, but they then demanded their money back -- and the house just gave a very strong No.
This ruling also gives us some further hints of where the court could be going. For one thing, Coleman has another motion pending, a demand that the strict standard be applied to all absentee ballots counted on Election Night -- to take the gambler metaphor further, they lost the bet and are now demanding that the house pay them by subtracting previous votes, or by reversing their ruling and letting more ballots in.
But if the court isn't applying that logic here, it doesn't seem likely that they'll go for this other maneuver -- especially because it's impossible to un-count Election Night ballots, because they were de-coupled from their envelopes at the time.
The next step is clear: The Coleman campaign is bound to appeal this, either in the middle of the trial or immediately afterwards.
Late Update: Check out this other quote from the opinion -- where the court lays out another reason Norm hasn't met the high bar for getting an injunction (emphasis ours):
The Court emphasizes that its analysis with respect to the instant motion does not involve a determination on the merits of the case as a whole, and nothing in this Order shall be construed as a definitive holding on the merits of the claims raised in the Notice of Contest or in the Answer and Counterclaims. See, e.g., Lano Equipment, Inc. v. Clark Equipment Co., Inc., 399 N.W.2d 694, 699 (Minn Ct. App. 1987); Minn. R. Civ. P. 52.01. Contestants' allegations notwithstanding, it is unclear at this stage whether Contestants will succeed on the merits of their case. For that reason, this factor weighs in favor of denying Contestants' motion for injunctive relief.
Norm is now in the fifth week of presenting his case, and is likely to rest either this week or next. And so far, the court says it's "unclear" whether he can succeed. Getting an injunction usually requires a likelihood of success, and Norm hasn't met it.
Again, they take great pains to say that this isn't a definitive holding, but this hardly looks good.
Josh
Elana
Matt
Eric
Are you getting some sort of hazard pay for staying on top of this?
If not, you deserve at least a bonus. . .
February 24, 2009 8:04 PM | Reply | Permalink
Ok. It's a TPM drum-beat: Bonus pay for Eric!
February 24, 2009 8:15 PM | Reply | Permalink
Cosign
February 24, 2009 8:17 PM | Reply | Permalink
"Ditto!" as the fine Mr. Taggart would say.
February 24, 2009 9:20 PM | Reply | Permalink
Give him a stimulus in his package.
February 24, 2009 8:25 PM | Reply | Permalink
I love the yeoman's work being done with these updates, but I'm not certain that much can be made from the phrase "it is unclear at this stage whether Contestants will succeed on the merits of their case."
I'm no lawyer (don't play one on TV either) but isn't injunctive relief provided in advance of a court decision if the court believes that it's going to be a slam dunk? That Coleman's case doesn't meet that high bar doesn't mean that he's destined to lose.
Although given the quality of Coleman's case (and lawyers) that certainly appears to be the case.
February 24, 2009 8:59 PM | Reply | Permalink
I don't even live in MN but I've been following this case very closely since the election. I have a couple of questions that I hope someone out there can answer: If Coleman loses his case before the Court, thus leaving things as they were, it would appear that Franken is the certifiable winner. Would the Republican governor then have to certify his victory or could the governor wait until all legal appeals had run their course before ratifying the election results? If the latter course were taken, could Franken then force MN's officials to seat him in the Senate while the appeal process was going on? I guess my question is could he seek an injunction to force this to happen? Thanks for any help anyone can provide in helping me understand these issues.
February 24, 2009 9:00 PM | Reply | Permalink
I am (ahem) NOT a lawyer. [Though I do inhabit Minnesota.] Once again, I ask about "original intent." Article I, Section 5---each house of Congress shall be the judge of the elections, returns, and qualifications of its members.
This would seem to suggest that it is really up to the Senate, not the federal courts, to settle this election. Pretty plain, unambiguous language. The Senate historically (and the House, too) has taken this provision at face value. In May of 1931 a Senate committee was trying to unscramble the Heflin-Bankhead race . . . a task made more challenging by the fact that two Alabama sheriffs had burned the ballots in their counties. The committee decided that voting irregularities were so widespread that the election should be declared null and void. But the full Senate in its wisdom retained Bankhead in office. Without consulting the internet, I believe that Mr. Heflin did get to the Senate in the next election. There was a Heflin, probably a descendant, in the Senate from Alabama in the 1970's and '80's.
February 24, 2009 10:43 PM | Reply | Permalink
It was the other way around--Heflin was the incumbent, and Bankhead the challenger. It was a bogus challenge: Bankhead beat him in the primary, and Heflin alleged fraud. The Senate seated Bankhead, investigated Heflin's complaint, and denied it.
Senator Howell Heflin was thje nephew of Thomas Heflin.
February 25, 2009 1:36 PM | Reply | Permalink
The election recount has already been certified by the Minnesota Board of Elections. As Al said on the Ed Shultz show recently that makes him the Senator Elect from Minnesota. Coleman is delaying the inevitable by appealing Al's election thorugh the recount process. Coleman, as is typical, is being very childish through all this ensuring that each day that goes by Minnesotans are not fully represented in the Congress.
I'll be so glad when the weasel Coleman no longer has any options. Maybe he'll slash his wrists to get more attention then. I can only hope so.
February 25, 2009 9:52 AM | Reply | Permalink
I agree with northstardon. I'm also not a lawyer, but I do know a little bit of legalese, and injunctive relief typically requires meeting a pretty high burden for a court to award it without a hearing on the merits. It's also worth noting that "likelihood of success on the merits" is invoked in many states as a factor to weigh before awarding relief, so it was probably something Coleman's team should have presented in their motion. So this seems simply to be saying that, whatever they did present in their motion, it didn't clearly lay out the simple steps to a Coleman victory - which in this case I would take to be the specific votes (or categories of votes) Coleman thinks that, by excluding, would put him over the top.
February 24, 2009 10:39 PM | Reply | Permalink
Answer as best as possible...
Minnesota Election Law provides for this contest following the recount, and then provides for an appeal to the State Supreme Court by the party that lost the contest phase. The Election, so to speak, is not over till these phases are complete. Thus far in the process, the MN Supreme Court has done 24-48 hour turn arounds on matters of process that have been brought to them, and I believe we can assume they will make quick work of an appeal from the judgment of this trial court.
Once Coleman is finished presenting his case, the Franken side will move for summary judgment, a way of saying, "Baby, you don't have a case that could change the outcome of the election." That is before the Franken side moves ahead with its rebuttle case. If the court issues a Summary Judgment decision, that can be appealed immediately to the MN Supreme Court, and should the court agree with the trial court, that would end the trial. Motion for Summary Judgment could come late this week -- early next week. Once the Supreme Court has issued a decision, then the SoS and the Governor can be ordered to sign the certificate of election. In fact, Franken has already argued such a motion before the Supreme Court, and they are sitting on it.
What would be the basis for a Summary Judgment decision? Well -- not enough ballots in the "yet to be counted" pot to overcome Franken's lead. In the last weeks the trial court has admitted a small number of ballots for counting -- perhaps about 40-60, which are Franken Petitioners, meaning that the bar is set as overcoming a lead of perhaps 270 votes. If there are not enough "yet to be counted" ballots admitted at the end of Coleman's case -- that ends the trial. This is why not revisiting AB's counted during the recount phase, and denying Coleman's motions that would otherwise expand this universe -- and taking all those ballots out of the mix today during the cross examination are important matters. They deny Coleman a decent sized universe from which to argue against Summary Judgment.
So an optimistic view of the future schedule...it would be that the Court adds it up and says there are not enough remaining legal ballots for Coleman to prevail -- something like that could happen early next week. Coleman would appeal this and many of the decisions that cut down his universe of ballots to the Supreme Court, and if they hear it quickly, and do a quick turn around as they seem to be interested in doing thus far, this could be over as far as Minnesota Election Law is concerned late next week -- early the following week. After the MN Supremes rule, then the table is set for an election certificate to issue, and if Coleman wants to appeal further, it would be in the Senate.
If the universe of remaining ballots possible to admit is larger then Franken's lead at the end of the Coleman offering of evidence, then the case moves on to Franken's case -- he offers his 1600 or so ballots he wants reviewed for counting. Following both cases, then the trial count would arrange for the SoS staff to actually open and count the Coleman and Franken admitted ballots, and the court would add those to the Recount final numbers -- and then rule who has the most.
Franken's attorneys say his case would take 2 or 3 weeks, and if there is no Summary Judgment, then we proceed with Franken's case. You can be sure if they take this route -- Coleman appeals to the MN Supreme Court, which might take a week or ten days, so we would be looking at another month or so before the window for certification would open. The certification window opens when the Supreme Court clears the deck by making decisions that are final, and no action anticipated by the MN Election Law is left on the table.
If Coleman wants to go into Federal Court, he can do so, but that action does not have an effect on the State Process. He would have to go into Federal District Court, probably in St. Paul, and he would have to argue and prove something was wrong with Minnesota Election Law that caused him great harm -- it is a huge claim to make and prove and there is considerable case law that would be against him. But it would not impact the certification process. That is governed by our state law. My own opinion is that Minnesota Election Law is very strong, sustained by many of the key cases in law, and getting into the Federal System would be a tough nut to crack on the only grounds available to Coleman. But Franken can go forward with certification and moving to the Senate even though Coleman may want to mess around in the Federal Court System. The fact that the Constitution says the Senate is the judge of its own member's elections sets a high bar against getting into the Federal System. (that is what makes it very different from Bush v. Gore.)
February 24, 2009 11:26 PM | Reply | Permalink
Thank you for laying out the different scenarios so thoroughly. It gives me some confidence that there really is an end in sight. I was beginning to wonder if it might not be over 'till summer, or even the beginning of the next election cycle!
February 25, 2009 1:33 AM | Reply | Permalink
I am a Minnesotan and a recovering lawyer, so I'll give it a go on the certificate and injunction questions:
Here is part of the statute (Section 204C.40, subd.2) applicable to issuance of a certificate: "In case of a contest, an election certificate shall not be issued until a court of proper jurisdiction has finally determined the contest." The statute also provides for direct appeal from the contest court to the Minnesota Supreme Court. Assuming the loser appeals, there will be no certificate issued before the Minnesota Supreme Court rules. Whether a petition for a writ of certiorari to the U.S. Supreme Court should hold up certification is debatable, but that is a question of statutory interpretation for the Minn. Supreme Court to decide.
Likelihood of success on the merits is indeed one of the factors a court considers in determining a request for preliminary injunctive relief. The election contest court is correct and cautious in describing Coleman's case on the merits as 'unclear' -- though the court has ruled out many of the additional ballots Coleman has proposed, it has not yet definitively agreed to count many (any?) Coleman ballots, and even if many ballots were eventually counted, the court cannot presume to know to whom the votes will break.
February 24, 2009 11:50 PM | Reply | Permalink
Minnesota Slim (and Sara)
By understand that "a court of proper jurisdiction" referred to in statue is the ELECTION CONTEST COURT that was established to hear Coleman's appeal. My understand is of the law is that once the Election Contest Court making it final ruling on which candidate has received the most legally cast votes, an Election Certification can be issued (by the Governor and Secretary of State).
If I am correct that the Election Contest Court is the "court of proper jurisdiction", the a certification can be issued INDEPENDENT OF WHETHER COLEMAN WERE TO MAKE AN APPEAL TO THE MINNESOTA SUPREME COURT (or any other court.
February 25, 2009 12:49 PM | Reply | Permalink
So time is running out for "Chicklets". The silver lining in the many delays are that along the way, Chicklets has demonstrated he his a man of zero integrity, that Minnesota did in fact vote in the better man and finally that Chicklets future in Minnesota politics are over.
Does anyone have an update his FBI investigation regarding the campaign funds being funneled through his wifes company?
Lastly, if anyone has missed Chicklets having his arse handed to him in a Senate hearing he chaired while shilling for Bush illegal war, this is not to be missed. It is one of the finest moments of the Senate:
http://www.youtube.com/watch?v=IyyGoPerzWc
February 25, 2009 9:10 AM | Reply | Permalink
So basically, the Republicans already know that Coleman lost and they are desperately just trying to keep Senator Franken out of the Senate as long as possible to deny the Democrats his vote.
February 25, 2009 10:09 AM | Reply | Permalink
Yep, that pretty much sums it up for me. Oh, and Coleman's a giant hypocrite, which is a prerequisite for joining the GOP.
February 25, 2009 10:59 AM | Reply | Permalink