Minnesota Court: No To Coleman, And Yes/No/Maybe To Franken
The Minnesota election court handed down two rulings tonight, one of which should be regarded as an unambiguous defeat for Norm Coleman -- and the other should probably leave Al Franken cautiously optimistic.
First, the court completely denied Coleman's motion to launch a class-action suit on behalf of all 11,000-plus voters whose absentee ballots have still not been counted. The court found that the state's election laws make clear that individuals may apply to have their ballots counted, but that groups cannot be created and represented for this purpose.
The court also handed down a summary judgment on Franken's efforts to get some of his own votes counted, and they've given him a go-ahead on 12 individuals to be accepted and counted at a later time. And to give you an idea of how strict a standard they're using here, there are 38 others on Franken's list they're refusing to count at this time.
That kind of stringency isn't very good news for Coleman, as he's trying to get a lot of his own votes in that the court hasn't ruled on yet. And considering he's the one who's actually behind right now, this question has a lot more urgency for him.
In a very interesting turn, the court denied Franken's motion to dismiss Coleman's challenge of the state canvassing board's decision to count the Election Night totals in a Minneapolis precinct that lost an envelope full of ballots, a move that saved Al from a net loss of 46 votes. On the other hand, the court appeared to drop some hints about where they could be going.
First of all, the court gave a brief overview of the case and said "it became evident that 130 ballots were missing," acknowledging the evidence at hand. Second, they acknowledged all the case law that Team Franken have cited in favor of their own legal claim.
But here's the catch: They say that the existence of the ballots themselves continues to be a question of fact for the court to examine. Coleman's team hasn't yet called the Minneapolis election officials to the stand, which is expected to happen this week, so expect the court to address this question some time afterward.
Meanwhile, the Coleman campaign has already started digging in on Franken's list of 1,585 rejected ballots to be reviewed for possible counting, and they might have found some bad ones. In fact, they've put up a blog post with this headline: "Disregarding Rights Of Minnesotans, Franken Seeks To Have Illegal Votes Counted."
Josh
Matt
Eric
Brian
I had to join because this just made me so mad. On Norm's blog post they completely disingenuously say "Among those notable ballots on the new Franken list are several deceased individuals" When I looked at the ballot, http://www.colemanforsenate.com/uploaded_media/Example1.pdf, I noticed it was filled out by one Mary Irene Enos on Oct 5, 2008. Mary Irene Enos died October 28, 2008. http://isanticountynews.com/index.php?option=com_content&task=view&id=4670&Itemid=29. How heartless can you be Norm. Attack the ballot in court, sure, but to post that cr*p on your blog insulting Mary is disgusting and disrespectful.
February 24, 2009 1:33 AM | Reply | Permalink
though disagreeable norm is actually right on this one. mn law is clear that being dead before polls open on election day is a no no.
February 24, 2009 7:33 AM | Reply | Permalink
That's interesting. So under Minnesota law, if I mailed in my absentee ballot on Oct 20th, and dropped dead on Nov 1, my vote cannot legally be counted?
February 24, 2009 9:05 AM | Reply | Permalink
This entire farce is the result of the worst election laws in the country. [God forbid they allow early voting].
Anybody can sue for any reason and stop the issuance of a certificate until all appeals are exhausted. How stupid can one state be?
Minnesota is a joke and makes Florida look like a state of geniuses.
February 24, 2009 10:30 AM | Reply | Permalink
The law was written in an age when both major political parties possessed some measure of sanity and a sense of comity. The era of the "nuclear option" had not been envisioned.
There's already legislation working its way through the statehouse to "modernize" the law in light of the new state of affairs.
February 24, 2009 10:37 AM | Reply | Permalink
Before criticizing Minnesota's election laws, you should learn something about them. Candidates have a right to contest an election, as I imagine is the case in many states. Your statement that anyone can sue and state the process is flat wrong. Minnesota is model of transparent elections. I'll hold our laws and processes up against anyone's.
February 24, 2009 3:28 PM | Reply | Permalink
Under Minnesota law, it can be legally counted as long as the election judges who accept your ballot don't know that you're dead.
February 24, 2009 10:35 AM | Reply | Permalink
It seems like they may be closing the noose on Coleman. Giving him not much of a place to go. Except to appellate court, obviously!
February 24, 2009 4:00 AM | Reply | Permalink
I'm getting pretty confident that he's aiming to bring a collateral action in federal court. If I'm not mistaken, he has barely tried to meet his burden of proof in this trial, and yet he's set to rest his case this week? It's possible Franken won't even have to put on his case.
February 24, 2009 4:56 AM | Reply | Permalink
Yeah, they've got to get it somehow into federal court. I know it sounds a bit silly, but as I keep saying, they've got a reasonably good shot at Scalia, Thomas will rubber stamp that, and that scheming Alito might even go along. Whether Roberts wants to forever stain his reputation with such a thing and its separation-of-powers entanglements (plus tramping on the plain language of the Constitution which puts this in the Senate's hands) is a real question, but if they can get those four, they can probably B.S. Kennedy with the usual cynical ego-appeal as to his critical importance. It amounts to a long shot, but who knows. Anyhow, it's going federal somehow, I strongly agree. This guy lost the election. His party is handsomely funding the litigation. Where else can he really go and hope for much of a shot?
February 24, 2009 6:22 AM | Reply | Permalink
I’m guessing that Franken’s team will at least try to get as many of the absentee ballots on his list accepted as possible to pad his lead for any future contingencies.
I don’t know what other case he might have to put on, since it seems that they have refuted almost all of Coleman’s claims on cross-examination.
February 24, 2009 9:27 AM | Reply | Permalink
One caution: don't make a big deal out of the court not granting summary judgment on any particular issue - summary judgment is difficult to obtain. Essentially, as the court indicates in its exposition of the summary judgment standard set forth in its brief, in order to obtain summary judgment a party must show two things: first that there are no genuine issues of fact. Essentially this means the court cannot make a decision between two facts - i.e. the court cannot now conclude that the missing ballots are in fact missing unless there is absolutely no question regarding this issue - it doesn't mean that Coleman has a prayer - it just means that the "fact" before it is subject to some kind of dispute, even a small or technical one is enough to prevent summary judgment. The second criterion for summary judgment is that the moving party is entitled to judgment as a matter of law - in other words that the law entitles you, on these uncontested facts, to win without having to do anything more in the way of proof or establishment of facts. This is exactly as difficult as it appears.
Read the court's opinion. If you are Franken or a supporter you should be very happy with the opinion. You win parts of it and the parts that you didn't win had little to do with whether you will win. Instead it had more to do with the fact that the "facts" actually before the court at the time it considered the motion were not sufficiently settled to permit you to prevail on what is ordinarily a difficult motion to win on. That said win or lose, the tenor of the motion (as set forth in the main comment) is all sorts of in Franken's favor.
Frankly, on the other hand if you are Coleman there is nothing in the opinion that helps you at all. In fact, this opinion is kind of like really early writing on the wall that Coleman's case is about to go down in flames.
February 24, 2009 9:04 AM | Reply | Permalink
The "writing on the wall" has been there throughout most of the case, and in virtually every decision the court has issued ruling on specific arguments. The court is going through the motions to show how fair and transparent the system is, before it eventually rules Franken the next Senator from Minnesota.
As I've stated before, there are only two reasonable explanations for the Coleman team's legal strategy, either they are grossly inadequate and uninformed (which is possible, but unlikely considering the national attention and egos involved) or they are cynically trying to stall as long as possible, by trying to throw in as much garbage as they can, whether or not it is relevant, makes sense legally, rationally or is factually accurate (more likely - stalling when you're winning is an effective strategy, and stalling when you're losing appears to keep the game close, and you haven't really lost until the whistle blows.)
Under current Minnesota law, the whistle isn't blown until the legal challenges are resolved. Until that happens, there will remain only 58 Democratic votes in the Senate, rather than 59. The status quo benefits the Republicans, so they have ample incentive to stall and delay as long as they can.
February 24, 2009 1:06 PM | Reply | Permalink