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Franken Moves To Throw Out Coleman's Lawsuit -- Or At Least Some Of It

Al Franken's legal team has now filed their expected motion to dismiss each and every single one of Norm Coleman's legal claims in the election contest -- that is, asking that either the whole case be thrown out, or at least that some of the claims be dismissed individually -- on the grounds that he failed to satisfy his burden in court before he rested his case.

The court could very well dismiss some of these claims -- for example, Coleman's recent stipulation that the allegedly missing ballots at the center of one claim did in fact exist makes that one an obvious candidate for dismissal.

It seems very unlikely, though, that all of them would be tossed at this point, before Franken has fully introduced counter-evidence in the most contentious examples.

Fundamentally, they say that Coleman has failed to introduce any evidence on a wide variety of claims in the lawsuit -- that local canvassing boards made counting errors, that the state canvassing board inconsistently awarded challenged ballots to Franken, etc. They dig in further on the stuff we have sat through.

Rejected Absentees
Team Franken goes over how Coleman initially had the opportunity to offer evidence that 4,800 selected absentee ballots had been wrongly-rejected by the local officials, later knocked down to about 3,600 after the court's ruling for strict standards. Then, Team Franken notes, Coleman failed to actually introduce any evidence on 1,473 of them, and only partial evidence on many more.

After boiling it down even further, we get this bottom line: Team Franken says Coleman has only introduced nine ballots with full evidence of voter and witness registration, and a similarly-tiny amount of other ballots which might have been witnessed by a proper official. Franken isn't conceding these were legal, either -- but the demand is that all others be thrown out.

Duplicate Ballots
The Franken filing says that Coleman hasn't introduced sufficient evidence -- that is, specific events at the precinct level -- on possible double-counting due to human errors in the process of duplicating damaged absentee ballots. Instead, we've had to rely on Coleman's mathematical claims. Furthermore, they invoke the legal doctrine of estoppel: Coleman agreed beforehand to the procedures used for sorting through duplicates, and thus he can't argue against them.

Franken's attorneys also make sure to allude to the multiple problems with Pamela Howell, the sole precinct worker who was brought in to testify about the problem: "The one exception comes in the form of indefinite hearsay from a witness whose credibility has been called into question."

Accepted Absentee Ballots, And Throwing Out The Election
The filing also makes sure to address Coleman's claim that absentee ballots were counted on Election Night that should have been rejected, which is being used to either invalidate the entire election or perhaps have it just awarded to him outright.

They point out that Coleman hasn't offered the required evidence of specific absentee envelopes to be retroactively declared illegal, but is instead asking the court at the last minute to start looking through all 286,000 envelopes out there. Furthermore, they say the whole venture of un-counting would be illegal -- that no Minnesota court has ever assumed that allegedly-illegal votes can be allocated one way or the other.

They say that Coleman is asking for help in the wrong venue -- that if Coleman now believes this court cannot determine a winner, "their only recourse is the United States Senate."

And make no mistake. After this trial is over, and after the appeals have been handled, the U.S. Senate is where this dispute will end up.


18 Comments

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Is my memory correct in that this is a court of 3 judges hearing this case and they're all Repulicans?

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No, the 3 judges were appointed by 1 republican, 1 democrat, and 1 independent (Jesse "The Body" Ventura).

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I should also point out that their rulings have all been unanimous. They have proceeded in a non-partisan, professional manner. If it is in any way partisan, we're talking tri-partisanship here.

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A question for Eric:

In your opinion, once it does go to the Senate, and we hear the likely squeals of protest from the Republican side... what, precisely, do you think will be the unfolding of events?

Specifically, will the R's threaten to filibuster? On what grounds? Will they filibuster? If yes, what remedies do Harry Reid and the Democratic majority have, short of a 2/3 vote on cloture; is there a "nuclear option" they could finally invoke (which, IMHO, would be supported by both Minnesotans and Americans at large, at that point, as the R's have pretty much worn out their goodwill in general)?

(Those are a lot of questions for sure, but you have proven yourself to be the go-to journalist... if not the only journalist!.. married to this story, for the last few months. At the very least, you should get some sort of web journalism award, after this is all done.)

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If Franken is certified, then a motion to accept his credentials would be in order and not a suspension of the rules. As such, a cloture motion would take 60 votes, not 2/3.

The question of whether the R's will try to filibuster is not really germane because the Senate rules don't really require an old-fashioned filibuster in the "Mr. Smith Goes to Washington" sense. There is a cloture vote on any measure, and if the cloture vote fails, the matter doesn't go to a vote.

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Now, hold on, there's a cloture vote on *every* bill? That's not the way I understood it at all. I thought someone had to have at least a "procedural" filibuster in place to require cloture...that is, they had to tell Reid they intended to filibuster. In other words, my understanding was that if no Republicans decided to hold up the bill, it could be passed with 51 votes with no cloture vote beforehand.

Have I had this wrong this whole time? If so, how come there are blog posts from time to time talking about how many times the filibuster was used in various recent congresses? Wouldn't it always just be 100%?

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Regardless of party or who appointed them, these judges have consistently remained level-headed, applied the rule of law, and addressed the merits of the case based on facts presented, not ideology or speculation. They are doing as well as can be expected under the circumstances.

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Finally, the beginning of the end for Slimy Norman. I do not see this taking much longer, and the MN Supreme Court will not have much patience with Quimby's theatrics.

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A fair statement of the law

Summary Judgment Standard
- In deciding a summary judgment motion, the court reviews the pleadings, any depositions, any answers to interrogatories, any admissions on file, and any affidavits. Summary judgment should be granted only when there is no genuine issue as to any material fact. A material fact is a fact that could affect the outcome of the case. An issue of fact is genuine if the evidence would justify a verdict for the party opposing the summary judgment motion. All inferences drawn from the evidence presented and all ambiguities must be resolved in favor of the party who opposes the summary judgment motion.


What result and why Eric?

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That's the wrong standard. This isn't a motion for summary judgment. Motions for summary judgment are filed after the close of discovery before either party has presented any evidence.

This is a motion to dismiss pursuant to Minnesota Rule of Civil Procedure 41.02(a). The procedural posture is significantly different than a motion for summary judgment because the plaintiff (Coleman) has already presented his case in chief. Instead of viewing the evidence in the light most favorable to the non-moving party (as in a motion for summary judgment), the court may view the evidence in the light that it would if the defendant rested without presenting any evidence. This means that the court can make credibility determinations.

You can read about the standard on pages 2 - 3 of the motion to dismiss, which Eric links in his post above.

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Is it me or is Franken's argument for absentee ballot contenders be knocked down to 9 total from ~3k based on a really big burden of proof? To scrutinize the rest of the ballots to the level of the 9 would require, well, years of testimony? I think Coleman's team was showcasing their 9 as examples of a flawed system and Franken's team is making consideration of the 9 literal. Of course, if it works, great. But their argument here is basically a point of view shift.

(Ok, I guess this is my obtuse statement of the day)

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Matyra, the ultimate issue to be decided by the election contest court is, which candidate received the most legally cast votes. Coleman cannot prevail on the ultimate issue by merely showing it is more likely than not that some legally cast votes were not counted, or that some illegally cast votes were counted. The decision of the canvassing board(Franken +225)is presumptively correct. Coleman's burden in the court contest is prove (to show that it is more likely than not) that he received more legally cast votes. NOT GONNA HAPPEN.

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So, Coleman was arguing that the errors are systematically in Franken's favor and Franken's arguing that it's just noise.

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I think you are correct that Coleman was showcasing the nine ballots as evidence of systemic error. Coleman seems to realize at this point that if the court merely counts the votes then Franken will win. So his last hope is to convince the court to conclude that it an accurate vote count is impossible. Coleman would then use that ruling to try to convince the U.S. Senate to declare the seat vacant, triggering a special election and an interim appointment by Governor Pawlenty.

This strikes me as a desperation tactic. (Or a delay tactic -- after all this court battle is being funded by Senate Republicans, and a vacant seat is even better for them than a seat filled by a blue state Republican. A blue state Republican always might vote against them, but a vacant seat is a 100% certain vote against cloture.)

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Thing is, if Franken can come up with 9 of his own, then Coleman has no evidence of systemic BIAS.

Systemic error is not systemic bias, or rather I should say that what counts here is bias, not mere error. I would argue that Coleman has the burden of proving bias, significant bias.

And that's even assuming MN should count ANY other ballots at all at this point.

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Nice job Mr. Kleefeld, tell your boss I bookmarked the site as a direct function of your reports.

Treat yourself to snappy head-shot with theatrical lighting and a mottled tobacco colored back drop. It may also be a good time to adopt some sort of distinctive affectation, you know, like a deerstalker cap, or a scrimshaw bong, or whatever. Or you could narrow it down to a few you like and we could vote, either way, terrific job

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What is the story on the box of evidence Coleman presented yesterday? Elias asked that it be sorted into documents that the court previously said it would accept, but I think the court told the two parties to sort the useable from the unusable. What effect, if any, will the contents of the box have?

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DENIED. It was a pile of junk he'd tried to submit before, only this time he actually wanted the Franken team and the Court to do its work and determine if there was any validity to the claims.

They were DENIED.

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