Franken Begins Presenting Case -- With A Lot Of Voters
Today is a big day in the Minnesota trial: The Franken campaign is finally beginning to present their side of the case, after Coleman rested yesterday.
The Franken camp has spent today bringing in a queue of aggrieved voters whose absentee ballots were rejected, 17 of them in total this morning, trying to get the court to rule that these ballots -- presumably all for Franken -- were wrongly tossed and ought to be put in the count.
The previous attempts by Team Coleman to play this game didn't go very well -- the judges even cited one Coleman witness by name by name as an illegal voter in an important opinion they handed down. So far, it seems to be going well for Franken, though it hasn't been perfect.
Lead Coleman lawyer Joe Friedberg doesn't seem to be making too much of an effort to declare that these votes were rejected properly, as the Franken campaign worked to accomplish against his own witnesses. This seems to be for two reasons: Team Coleman has been trying to get the court to reverse itself on their strict standards for letting in rejected votes, and therefore he needs to show good faith. And furthermore, the Coleman camp seem to have changed their approach, to demonstrate the fallibility and unreliability of the system, in order to possibly get the whole election thrown out.
Here's one exchange between Friedberg and a Franken witness:
Friedberg: Ms. Meyer, can you think of any reason your ballot shouldn't be opened and counted?
Pamela Meyer: No.
Friedberg: Neither can I. We stipulate this ballot should be opened and counted, Your Honor.
Other cross-examinations were more drawn out than this one was, but you get the idea.
Another fun moment came from law student Nicole Nichols, daughter of prominent Minnesota lawyer Donald Nichols, who is the co-founder of a labor-law firm dealing with discrimination, wages, whistleblower-protection and other issues. "I thought I recognized that name," Franken lawyer David Lillehaug said with a smile.
It even turns out that Friedberg is a friend of hers, due to her interest in criminal defense -- in fact, she congratulated him on his 72nd birthday yesterday:
Friedberg: Ms. Nichols, we have met.
Nichols: Yes. Happy birthday.
(Laughter throughout court.)
Friedberg: Thanks.
Friedberg later got to the point, and said he would stipulate that her ballot should be counted "if the opposition would concede the Secretary of State is wrong in having her registered at a prior address."
Thus we see a fall-back position for Team Coleman: They're seeing the writing on the wall, that they are highly unlikely to take a lead in this court -- and thus they need for the whole system to be impugned.
There were some potential or even likely duds in the Franken sample, though. For example, it turned out that voter Charles Neimeyer actually sent in two absentee ballots -- the county rejected his first one, then sent him another one, which he filled in and mailed back. It appears the second one has been counted, which would leave him here in court to argue for the first one, thus counting him twice. Franken lawyer Kevin Hamilton seemed quite surprised to hear this, and told the judges that they'll check in on the situation, and withdraw this witness if that's how it turns out.
But overall, this has been pretty encouraging for Franken -- and probably helped by the sharp change in strategy from Coleman.
Josh
Matt
Eric
Brian
This is the difference between putting on a case based on the merits and putting on a case just to delay the inevitable. Franken's team has specific arguments on specific ballots. When the facts turn out to be not as they anticipated, they immediately move on and if they confirm the facts as learned, they will withdraw that ballot, rather than arguing, as Coleman did, to allow forged ballots to be admitted. With a 225 vote lead, getting a few dozen extra ballots in will help Franken mathematically if certain issues are reversed on appeal.
Coleman's team, if they were trying to win - and they are not - is making substantial errors by stipulating to the entry of ballots. Instead they should be offering minimal or no cross. By stipulating to ballots, they are adding to their prior problems caused by earlier stipulations. Invited errors and stipulations cannot be appealed. Nor can a change in tactics convince the court to reverse prior rulings. When you change quarterbacks after half-time, you don't undo the other team's scores from the first half.
More proof that the puppetmasters for Coleman have two goals: 1) Keep Franken out of the senate as long as they can continue to stall; and 2) Create an argument that Franken stole the election, on the theory that they can use that against him in a future election.
Don't believe a word of their argument that there should be a new trial. No grounds for it. No law for it. It's just more Kabuki.
March 3, 2009 2:56 PM | Reply | Permalink
I think their argument that there should be a new election is really a tip off the tactics Senate Republicans will use when it comes time to vote on accepting Franken's credentials.
March 3, 2009 3:03 PM | Reply | Permalink
No, Coleman is happy to have Franken making Coleman's case for him. The Coleman case is that too many ballots were not treated correctly. Each ballot that Franken gets admitted, while perhaps adding to his vote spread if counted, undermines the legitimacy of the election. Since Coleman is behind and could not come up with votes to reverse that, he's just giving Franken slack to make things look worse.
What I don't get is why Franken didn't go for dismissal on the grounds that Coleman had only blown smoke when Coleman's burden is heavier than that.
That said, I don't see that Franken making things look worse by introducing more incorrectly treated ballots should be sufficient, since I still believe this is not about voter disenfranchisement in general but about Coleman's burden of proof in particular. That is, why the heck is the court hearing this testimony at this time? It is not relevant!
That the court is hearing it makes Franken incompetent or my thinking about the core issue unsound. Definitely could be the latter... but I don't get the errors if any.
March 3, 2009 4:18 PM | Reply | Permalink
Remember, there are a bunch of separate categories of ballots, each with their own issues. I believe that there are some categories on which Coleman failed to meet his burden of proof, hence Franken's promise that a motion to dismiss some of the case is pending later this week. On other categories, such as official, rather than voter error, additional ballots were approved for counting. Consequently, since Franken has some in this category, it is worth his while to get them added in to his total.
The reason this doesn't help Coleman is that Coleman is making a nebulous claim, based on speculation, that there were more illegal votes counted than the spread between the final tally, so the "real" outcome cannot be known. His problem is that he didn't prove this contention. If he had adequately demonstrated that 10,000 votes were destroyed by, say, faulty voting machines, he might be in a better position. But even then, I don't think so. The court's role is to rule on the recount.
For Coleman to win his argument, I think he would have had to show that there were actually illegal votes, and that he was prejudiced by their being counted. In other words, for him to win this case I think he needed to show that, in fact, he won or should have won the election. Not only did the Coleman team not do this, they didn't really even try.
And they didn't try because they knew, on the merits, they didn't have the proof. Down by 5 at the end of the game, you don't kick a field goal. You throw a Hail Mary, try to get the game called, and complain about the refs.
March 3, 2009 5:55 PM | Reply | Permalink
I'm not getting your reply.
"On other categories, such as official, rather than voter error, additional ballots were approved for counting. "
I would think the court would simply count those, and if they didn't put Coleman ahead, Coleman loses. If they put Coleman ahead, then Franken gets to present a "defense" which includes getting his own ballots approved. That the court did not do this suggests to me, as said, that either Franken or the court is incompetent, or the court (and Franken) considers Coleman's case to have merit anyway. You and I seem to agree the case doesn't have other merit based on the facts we have.
So, what gives?
ps - thanks for the reply.
March 3, 2009 7:07 PM | Reply | Permalink
I'm thinking that the couple who were originally encouraged to vote absentee by the National Republican Party probably didn't vote for Franken, although you never know. I also wondered about the law student who knew Coleman's lawyer and wished him happy birthday, although maybe he's a friend of her dad's who's also an atty.
I'm still wondering about the ballot from the guy in the assisted living facility who's ballot was rejected, evidently because he moved from one room to another when the facility wanted to redecorate the first room. Does that really constitute moving and triggering the need to update your registration?
March 3, 2009 4:13 PM | Reply | Permalink