Minnesota Trial Finally Picks Up The Pace
A funny thing has happened in the Minnesota election trial today -- they're actually making real progress!
After the judges handed down key rulings over the past week that finally established real rules -- they had heard enough from prior witnesses to rule what kinds of ballots would be admitted, and what standards to apply for any new pleas -- the campaigns are very quickly going through the motions with the election officials who do come through.
So far today they have fully examined -- that is, the witness is sworn in, direct-examined, cross-examined, re-direct-examined and excused -- election officials from several different counties, plus four municipalities in Hennepin County (Minneapolis) where the cities run elections. They also finished up an interview of another county official, which had begun yesterday afternoon.
Judge Denise Reilly even thanked and congratulated the parties for getting through "nine and a half" officials.
Who knows, at the rate they're now going they might actually be done by 2012.
Meanwhile, Coleman spokesman/lawyer Ben Ginsberg is now playing up the Coleman campaign's case that the current vote totals cannot stand.
Ginsberg explained that we've seen counties allowing in absentee ballots that had flaws in them according to the strict letter of the law. And since the court is now applying the strict letter of the law in letting in any new ballots, this creates a situation "so that illegal votes are included in the current counts that the court will have to certify as accurate, a direct contradiction between its February 13th order and what's in the actual ballots."
"There are more illegal votes in the current count than Al Franken's erstwhile lead," Ginsberg later added -- setting this whole thing up for an appeal to higher courts, the Supreme Court, the United States Senate, and the Guardians of the Universe.
In response to a reporter's question about the difficulties in calculating votes here, Ginsberg also pointed to how other people have discussed how no certain result is available in an election this narrow -- the sort of thing we'd expect to hear from a campaign that might seek a do-over election as one contingency plan -- citing a recent piece in the Pioneer Press: "That notion is there in the water, but we're not putting it there."
Another thing: He repeatedly referred to last week's ruling as the "Friday the 13th Ruling," as if a large murderer in a hockey mask is now writing Minnesota's case law.
(Ginsberg presser via The Uptake)
Josh
Matt
Eric
Brian
It's plainly obvious where this is going. Coleman can stall, but he can't stop the inevitable. The panel will rule against him, the MN-SC will affirm the decision and Franken will be certified. It's just a matter of when.
The real question is, what's the end game? Will the SCOTUS agree to hear the case? Will the Senate Republicans try to filibuster and will they succeed? This is where the matter will ultimately be decided.
February 19, 2009 6:13 PM | Reply | Permalink
My understanding is that there is no basis for a filibuster, which is for bills only; not for letting someone into the Senate. Although I am not surprised that they have threatened it, because they only want to create chaos wherever they can, I don't think they have any standing to filibuster the admission of a certified Senator.
February 19, 2009 7:20 PM | Reply | Permalink
Yeah, there's no reason for the Senate to vote on it, there's no place for anything like a filibuster. I also doubt that the US Supreme Court would look at it, as there doesn't seem, so far, to have been any Federal issues (e.g., equal protection, voting rights violation) asserted. (Yet.) I also think the US SC would be reluctant to overturn an actual declaration-of-winner; the recount is over, after all...
February 19, 2009 8:52 PM | Reply | Permalink
They don't have to filibuster Franken's seating. That may actually be impossible. But if they threaten to filibuster everything that moves on the Senate floor, Harry Reid will capitulate.
February 20, 2009 10:18 AM | Reply | Permalink
Credentials of incoming senators must be approved by the Senate. At the beginning of a Congress it's done as a group by unanimous consent for all newly elected (or re-elected) Senators, so you can't object to a single one. For any Senator added later, an objection will result in a vote that can be filibustered.
February 20, 2009 10:42 AM | Reply | Permalink
"Will the SCOTUS agree to hear the case?" OK, I guess I should have studied harder in the one law class I took but...what is the mechanism for SCOTUS taking any case? I seem to remember that each Justice is assigned a Circuit to review appeals as to whether SCOTUS will decide a case from there or not. IF true...which Justice is assigned to the Circuit containing Minnesota? (Or, as is quite likely, am I totally off-base and if so, what's the real mechanism)?
BTW, I've been reading your posts for weeks, mans_best_friend, and you're right on!
February 20, 2009 10:38 AM | Reply | Permalink
If Coleman loses in the MN-SC he can appeal to the SCOTUS for a writ of certiorari, which just means that they would agree to hear the case, bypassing any lower courts. Minnesota is in the 8th Circuit (Alito), but it's not always necessary to appeal to that justice.
I'm not convinced the SCOTUS would touch this case, but then again, I didn't think they would touch Bush v. Gore, either.
February 20, 2009 10:53 AM | Reply | Permalink
Just to expand on that—if a writ is filed, any four of the nine Justices have to agree it has merit in order for it to be heard. (That doesn't mean they'll overturn it, just that they think the case deserves to be heard.
Here are the Supreme Court "rules" (I use that last term loosely) that determine whether or not the case has merit.
If you're interested in learning more, The Nine is an excellent, easy-to-read book on the Supreme Court.
February 20, 2009 11:30 AM | Reply | Permalink
I hope Franken has a PR campaign he plans to roll out after he gets this courts decision. It always seems like he's getting creamed in the court of public opinion.
February 19, 2009 6:23 PM | Reply | Permalink
He is touring MN regarding the stimulus package this week. I'd call that good PR and very senatorial of him, as well.
http://www.msnbc.msn.com/id/29227019/
February 19, 2009 6:26 PM | Reply | Permalink
I wish the MN-Supreme Court would either sh-t or get off the pot. Will Franken be seated provisionally?
I heard SoS Mark Ritchie on NPR last week and he thought they would rule this week. Now it's Thursday and the clock is ticking. I hope it's a Friday document dump and they rule in favor of Franken. Fingers crossed....
February 19, 2009 6:24 PM | Reply | Permalink
Given that the closeness of this election is entirely due to the presence of a third party candidate on the ballot in November, I don't understand why the MN legislature hasn't simply called for a runoff election. Any candidate who wins by a court decision is going to have serious legitmacy issues, and is likely to serve only one term.
February 19, 2009 7:12 PM | Reply | Permalink
Why SHOULD the legislature "call" for a run-off election; i.e., re-write the election statutes?
Then any time there is a close election, even without minor party candidates, the loser gets to raise a big enough fuss and get a second chance?
Minnesota has a long third party tradition. In fact, Mr. Franken is the candidate of the Democratic-Farmer-Labor Party, descended from a merger of the state's second biggest party, Farmer-Labor, and its third biggest, the Democrats, back in 1944. Third parties, or fourth parties, play an important role in introducing new ideas and combating political stagnation.
In summary, you can have an election with a razor-thin margin whether you have three or two candidates. It is okay to be elected with a plurality rather than an outright majority--for instance, A. Lincoln, W. Wilson, B. Clinton. (Minnesota was the state giving Perot his biggest percentage, I think--23%.) Many people suggest that instant-runoff voting would be a better solution than a whole separate run-off race.
As for "serious legitimacy issues" for a candidate winning by court decision---two precedents: LBJ in 1948 (he DID steal the election] and Junior Bush in 2000 [another outright theft.] In neither case did the political opposition make any headway against them. You may remember how the Democratic leadership dropped trou and bent over for Bush, Rove, and Cheney.
February 19, 2009 7:31 PM | Reply | Permalink
Also, i think legally, Absentee Voting in MN is a privilege not a "right". So even if it's found that there were discrepencies in counting by different BOE folk... there can be no Equal Protection argument.
February 20, 2009 6:45 AM | Reply | Permalink
----
Any candidate who wins by a court decision is going to have serious legitmacy issues, and is likely to serve only one term.
----
You mean like George W. Bush?
February 20, 2009 7:16 AM | Reply | Permalink
Wouldn't changing the election law AFTER the election is over and the votes are counted cause "legitimacy issues"?
February 20, 2009 11:20 AM | Reply | Permalink
"I don't understand why the MN legislature hasn't simply called for a runoff election. Any candidate who wins by a court decision is going to have serious legitmacy issues, and is likely to serve only one term."
The Legislature makes the laws, and the courts interpret and enforce the laws -- this is why the Legislature is not calling for a "run-off" -- simply because our existing laws in Minnesota over 150 years have never never contemplated that kind of decision making. We don't make it up as we go along. The Court process now is about what is a legal ballot, counting these, and then ruling as to which candidate has the most votes. That's all. If in the end it is a true tie, then we flip a coin. That is what our law says.
The winner will not win by a court ruling, they will win by a very small margin that was carefully recounted, and then submitted to an election contest. If Lyndon Johnson could become Majority Leader of the Senate based on a margin of about 90 votes (many based on ballot box stuffing) in his first Senate Election in 1948, I have no problem with Franken going into the Senate on the basis of three hundered votes or so.
February 19, 2009 7:40 PM | Reply | Permalink
He won in the recount.
February 19, 2009 7:45 PM | Reply | Permalink
He may have won the recount, but he did not yet win the election. The Minnesota Election Contest Court trial is part of the Minnesota election process. The results of the recount are being challenged and thus, those results are not final.
February 19, 2009 8:06 PM | Reply | Permalink
Friday the 13th huh? Ah, if only we could get Jason involved in this on Al's behalf.
February 19, 2009 8:08 PM | Reply | Permalink
As if Quimbey had a snowball's chance in hell of winning a revote at this point even if they could conjure one into existance by sheer force of bullshit.
February 19, 2009 8:27 PM | Reply | Permalink
The Coleman team is pushing the notion that if all ballots weren't counted according to a uniform standard, then the whole election is invalid. By that logic, all elections held anytime are by definition invalid.
February 19, 2009 9:00 PM | Reply | Permalink
The judges panel agrees:
"It is irrelevant whether there were irregularities between the counties in applying Minnesota Statutes 203B.12.subd. 2. prior to this election contest."
http://www.minnpost.com/ericblackblog/2009/02/19/6829/threejudges_to_coleman_your_lack-of-uniformity_argument_is_irrelevant
Irrelevant, a strong legal word (thank God they are starting to use them).
Vote counting is left to local officials to interpret the law- all part of living in this great Republic of ours, for which it stands. The very essence of our system insures their will NOT be uniformity.
Of course, Coleman knows this- he's just stalling.
February 19, 2009 9:11 PM | Reply | Permalink
like Florida 2000?
February 19, 2009 9:15 PM | Reply | Permalink
and setting himself up for appeal too, of course.
February 19, 2009 9:17 PM | Reply | Permalink
Of course Norm Q. is trying to set up a federal case.
But John Roberts doesn't have the cojones that Rehnquist did. (I think it comes with not being a narcotics addict.) And the Senate - and the MN legislature - can tell the SCOTUS to bugger off.
This is part of any SCOTUS deliberation when they start to tread on separation of powers - they only have as much authority as the other branches are willing to give them. In this case, it would be both the US Senate and the state of MN that would stand up to them, and SCOTUS can't win that fight.
SCOTUS will not intervene. The lower federal courts will know this, and without the big boys to back them up will defer to the state of MN.
February 19, 2009 10:39 PM | Reply | Permalink
Yeah, but I believe the next step for Norm would be the MN-SC. Then, it would be SCOTUS.
February 19, 2009 11:30 PM | Reply | Permalink
I was looking at the Breyer dissent in Bush v. Gore, i.e., (1) that they never should have issued a stay and (2) they never should have taken the case. That Breyer -- smart motherfucker!
Your route is how they got to SCOTUS in that case, of course, and it took some twisted fucks indeed to grant certiorari (get involved) in that one. I am sure Scalia is up for it again, having already irrevocably disgraced his reputation, and Thomas would naturally be along. I make Alito as being further off the deep end than is sometimes recognized, so he might be up for some extra-Constitutional hijinks as well.
Whether Roberts wants to soil his reputation by getting into another round of Let's-play-banana-republic is a question for me, especially when he recognizes separation of powers problems that might well prevent a kangaroo court ruling from being implemented. Does he really need that? But if those four can line up, I think they can get Kennedy by (as usual) telling him that only he can save the world since some things are just too important, and cannot be done without his crucial involvement, etc.
February 20, 2009 7:40 AM | Reply | Permalink
Roberts probably wants to be remembered as a respectable Justice, something that never overly troubled the result-oriented Party man Rehnquist, so that would be in line with what you say.
February 20, 2009 7:13 AM | Reply | Permalink
If they had a new "run-off" election now, Norm would lose by such a big margin that he wouldn't even be able to get money from his repub "pals" for when he goes to trial for his theft issues.
February 20, 2009 8:59 AM | Reply | Permalink
Hve you seen any polling that supports your assertion? I have been wondering about this but cannot find any information.
February 20, 2009 9:16 AM | Reply | Permalink
No. I read that polls indicate that, but truthfully, what I read came down to, "I heard that..." I just can't imagine any other outcome, but then I couldn't imagine Michelle Bachman getting re-elected either. From what I hear (that old phrase again) Franken is acting like a Senator and Norm is acting like a sore loser, but that is just my impression.
February 20, 2009 10:43 AM | Reply | Permalink
I'm not saying you're wrong, but I don't trust my instincts any more, since I couldn't imagine W getting re-elected in 2004, or it even being close.
My point being, the public gets it right sometimes, but sometimes they can be downright illogical as well.
February 20, 2009 11:35 AM | Reply | Permalink
That was why I asked for polling. I think coleman should Lose but W proved to me that I know nothing about how my fellow citizens see people. He seemed like an unctious cretin from the first time I saw him durring the 2000 primary.
February 20, 2009 3:24 PM | Reply | Permalink
It has to be close to 60% disapproval for Coleman, if not closer to 65% or more.
Barkley voters were already not fans, so if toss them in- it's somewhere around 60 plus.
February 20, 2009 9:47 AM | Reply | Permalink
Norm knows he's lost. This is no longer about winning the election for him and the GOP, it's about election obstructionism. Keep Al from winning...officially. Norm's scoring GOP next job points based on how long they can drag this out. The longer they keep him from being seated, the bigger the target they think they'll have to use in their ongoing plans to remain "nattering nabobs of negativism". Think they'll find Al a worthy opponent. Humor really is a great weapon against these guys.
February 20, 2009 10:30 AM | Reply | Permalink
At least Al will have no reason in hell to be bi-partisan. He knows who his friends are and they are not the republicans. Minnesota should be ashamed. They do not deserve Al.
February 20, 2009 5:57 PM | Reply | Permalink