Minnesota Election Court Nixes Coleman's Bush v. Gore Gambit, Denies Motion To Count 4,500 Ballots
The Minnesota election court has just handed down a major ruling, completely denying Norm Coleman's motion for summary judgment that would have opened up and counted a set of roughly 4,500 rejected absentee ballots that his campaign insists were wrongly rejected and ought to be counted.
Earlier today, the court similarly rejected Franken's attempt to have the ballots set aside entirely and to limit Coleman to a pool of 654 ballots, which at the time the Coleman camp was hailing as a major victory that will ensure votes are counted. But it turns out it's not that easy.
The upshot of the two decisions is that Coleman may argue on behalf of these voters, but there is no guarantee that they'll be counted. Instead, he'll need to argue for them one by one. And of course, the Franken campaign will have a full opportunity to cross-examine Coleman's witnesses -- many of whom have demonstrated that they in fact committed clear errors in filling out their ballots -- and to also play this same game down the road.
Specifically, the court shot down the Coleman campaign's claim that absentee voting in Minnesota should be regarded as a right, rather than a privilege, and that the four specific reasons for rejecting an absentee ballot are clear and fully binding: "A citizen who exercises this privilege can register and vote, by the terms of the law, only by complying with provisions."
The court also rejected the Coleman camp's comparison of this case to Bush v. Gore, and their invocation of an equal protection argument in the unequal treatment of absentee ballots by individual election officials across the state. In fact, the court said, the standards are clear and objective.
The practical effect of this finding is that it ensures a higher burden of proof for demonstrating that an absentee was wrongly excluded, rather than the much lighter substantial compliance standard that Coleman wanted to use.
On a conference call with reporters tonight, lead Franken lawyer Marc Elias was quite understandably happy with this decision. "The court has to presume, absent any evidence that the election officials acted lawfully," Elias said, adding that the Coleman team now "have to meet their burden to show that a given ballot was not treated properly by this official."
Although it doesn't guarantee that any votes will or won't be counted, we can safely predict one thing: This is going to take a long time.
Late Update: The ruling is available here.
Josh
Matt
Eric
February 3, 2009 9:15 PM | Reply | Permalink
Thank you Eric!
Finally some good news in an otherwise very dark day for the Democrats. This is a huge decision.
Struggling just to get a stimulus bill through in the depths of a recession, they'll need every vote....
Health care reform?
Fuggit about it
February 3, 2009 9:27 PM | Reply | Permalink
very dark day??
up your meds!..
geez. pathetic.
February 3, 2009 9:46 PM | Reply | Permalink
OK, I kinda like Daschle personally, but health-care reform? He was never that "into it." The most we could have gotten from him was for the insurance companies to let him explain what they wanted to hear.
Why is it a "dark day" for someone who owed almost $150,000 in taxes, that NEVER WOULD HAVE BEEN PAID IF HE HADN'T BEEN IN THIS SITUATION to be disqualified (actually, no - to withdraw himself) because it made him look like he was trying to get away without paying his taxes?
My biggest regret about this is that Obama's second choices are so much worse than his first: Bill Richarson -- now Judd Gregg (with the caveat that his replacement is REPUBLICAN -- yeah, the opposite would happen with a repub President!
Who is he going to go with for HHR? I am truly worried.
February 3, 2009 10:44 PM | Reply | Permalink
Instead, he'll need to argue for them one by one.
All 4500?
He might go for that option, if you let him :P
February 3, 2009 9:38 PM | Reply | Permalink
Exactly what I was thinking. :-(
February 4, 2009 12:39 AM | Reply | Permalink
4500 balots are getting litigated individually? So, is the recount litigation then going to end before or after the Senate term at issue expires?
February 3, 2009 9:46 PM | Reply | Permalink
This is all so Rovian. It's just like the Alabama case where the recount for the state supreme court judgeship went on and on.
The recount stretched into the following year. On Inauguration Day both candidates appeared for the ceremonies. By March the all-Democratic Alabama Supreme Court had ordered that the absentee ballots be counted. By April the matter was before the Eleventh Federal Circuit Court. The byzantine legal maneuvering continued for months. In mid-October a federal appeals-court judge finally ruled that the ballots could not be counted, and ordered the secretary of state to certify Hooper as the winner—only to have Hornsby's legal team appeal to the U.S. Supreme Court, which temporarily stayed the case. By now the recount had dragged on for almost a year.
http://www.theatlantic.com/doc/200411/green
Wait a minute... is Karl Rove involved here?
February 3, 2009 10:08 PM | Reply | Permalink
Is Rove involved? I suppose you meant that as a snarky, rhetorical question, at least that's how I would take it.
For the record, Rove intervened in Minnesota GOP politics in 2002, when both Tim Pawlenty and Norm Coleman wanted to run for the Paul Wellstone Senate seat. Rove basically told Pawlenty to step aside (and run for Governor as a consolation prize)---but the big shots in the national Republican party wanted Norm in the Senate. Rove has been Norm's patron for years. And the character assassination campaign run against Al Franken, which cost Al so many votes of Democrats and independents, had Rove's fingerprints all over it.
Why isn't Rove in jail? Oh---we're supposed to let bygones be bygones, right. The new administration is going to have to learn the hard way . . . I just hope they are capable of learning at all.
February 3, 2009 11:55 PM | Reply | Permalink
So all 4500 absentee voters would have to be called in to testify on their ballot or do they argue each individual merit to the judges? How many voters will want to bother?
If Coleman's gambit is just to delay until the stimulus is passed, this could be chalked up as a win of sorts.
February 3, 2009 10:29 PM | Reply | Permalink
Here's how the D's respond: Democratic New Hampshire Governor John Lynch decides to wait a bit on appointing the Republican replacement for Judd Gregg (Bonnie Newman). Come up with any excuse that works, like "taking time to fully vet Bonnie and other qualified Republican canididates to be sure we send the best possible person to represent the good citizens of New Hapshire."
Now - by coincidence, of course - as soon as Franken heads to the senate, so does Newman. Yeah, I know, there's some political risk for Lynch if the R's decide to stick it out and the appointment 'process' drags on for many months.
February 4, 2009 12:19 AM | Reply | Permalink
so... If this is such good news, then why does this story make it sound like a great day for Coleman?
http://news.yahoo.com/s/ap/20090204/ap_on_re_us/minnesota_senate
Maybe it's late, but this sound exactly the oposite...
Can ya hep me ta understand?
February 3, 2009 10:45 PM | Reply | Permalink
There's a very simple explanation: This AP writer is unaware of the summary judgement ruling that came so late in the day.
February 3, 2009 11:20 PM | Reply | Permalink
Thx for clarity! Nice!
February 4, 2009 2:18 AM | Reply | Permalink
There does seem to be a discrepancy. If the court ruled, as per the blog here, that self-disenfrachised voters are out of luck, then how in the world can they allow 4500-5000 correctly rejected ballots to be examined yet again. Recall that supposedly all absentee ballots were reviewed for the recount.
And unless Coleman gets to cherry-pick the ballots, they should still favor Franken.
February 4, 2009 1:29 AM | Reply | Permalink
Coleman gets 4800 chances to make up the 225 vote difference, so he came out of this pretty good.
February 3, 2009 10:53 PM | Reply | Permalink
Yeah, totally. It won't take any time at all to get those people into court and through a hearing.
February 3, 2009 11:14 PM | Reply | Permalink
If he can get one out of every ten included that's 480 votes, and though he professes otherwise, you can be pretty sure that these ballots have been cherry-picked and Coleman knows the votes are his.
Of course Franken has about 700 ballots of his own that he'll challenge to have counted, but wont do that until the Coleman side rests.
February 3, 2009 11:19 PM | Reply | Permalink
Someone refresh my memory. Isn't there a statutory time limit on this proceeding? I thought it was three weeks.
There's simply no possibility these ballots will be litigated individually. It's not practical. What Coleman will be allowed to do is argue that specific procedures followed by the county officials were wrong and that ballots affected by these errors should be re-examined to see if they should be counted. A good example is the county in which they invalidated ballots that didn't have driver's license numbers, which are not required. He could probably convince the court to examine those ballots (and all others invalidated for the same incorrect reason) to see if they should be counted.
But unless he can show a specific incorrect reason for rejection, he's not going to get anywhere. If Coleman thinks he's going to get the court to examine thousands of signatures to see if they match, he's going to lose that one.
In the end, out of 4,500, he's probably going to get, at most, a few hundred added in. That's not going to do it.
February 4, 2009 10:00 AM | Reply | Permalink
Guess his lawyers never read the part in the Bush v. Gore decision itself that states this decision was "limited to the present circumstances" (i.e. Bush v. Gore in 2000) and could not be used as precedence (since it would invalidate every election ever held (which is the tell that the decision in 2000 was a fraud):
As Vincent Bugliosi wrote not long afterwards about that little gem in his evisceration of Bush v. Gore in "None Dare Call it Treason":
But leave it to a GOP hack's lawyer to not bother to actually have read or understood the staggering fraud and chutzpah that was Bush v. Gore by the felonious five on the SCOTUS.
February 3, 2009 11:16 PM | Reply | Permalink
I was really surprised that the SCOTUS took this case, and at Scalia in particular. While I often disagreed with him, he at least seemed to have the integrity of his beliefs. He threw that out completely on this case. Stopping the count while they took up the issue was as transparent as it gets. I knew right then that the fix was in.
February 4, 2009 10:07 AM | Reply | Permalink
That is laughable of Coleman to try. The Bush v. Gore decision explicitly states that it will not stand as precedent for future cases, which is a rather ridiculous notion, but apparently the gang of five knew that since the case shouldn't even have been before the SC, they would have to declaim its value as a precedent. *cringe*
Stock disclaimer: IANAL.
February 4, 2009 10:56 AM | Reply | Permalink
At the risk of spraining my shoulder as I attempt to pat myself on the back, the court is making a clear split between the discretionary decisions involving voter intent and procedural questions that determine validity. They are also holding Coleman to the requirement that since he's the plaintiff, he must prove error on each ballot, and not just speculate on what might have happened to create possible ambiguities in perceived numerical inconsistencies. In essence, the court just denied Coleman's attempt to get this matter ruled a class action case, that can be tried by representative examples.
They are literally saying look at 4500 ballots individually, but what they are really saying to Coleman is to get his ducks in a line and if he can't get clear hits on his first targets, then I suspect the next step is to demand a summarized offer of proof of the ballots. For non-lawyers, that means the judges will demand a list from Coleman stating the specific known error on each ballot he intends to prove. If no error can be identified before the ballot is addressed, it will not be addressed. The next step will be to take up the errors by category. If Coleman presents a few examples in the first category, and the judges concur that the ballots were correctly rejected the first two times, then they'll throw out the whole category, and tell him to move on.
This may go much quicker than it might seem.
February 4, 2009 11:59 AM | Reply | Permalink
Yes. :-)
February 4, 2009 3:22 PM | Reply | Permalink