In Blow To Coleman, Minnesota Court To Review Only 400 Ballots For Possible Opening
The Minnesota election court has just handed down a much-awaited ruling, laying out which previously-rejected ballots might just be counted yet -- and though it's unclear right now whose votes are whose, it doesn't look all that good for Norm Coleman.
The court reviewed 980 copies of rejected absentee ballots that both campaigns had submitted to the court arguing they should be counted under the law. We don't know the exact proportions, and Coleman alone had submitted more than that. Of those, the court has individually selected 400 of those for final review of the originals. But even all 400 of these won't be counted: "To be clear, not every absentee ballot identified in this Order will ultimately be opened and counted."
The ballots will be delivered to the Secretary of State's office by noon Monday, and those that are cleared for inclusion will be counted the next day.
So what kinds of ballots will be counted, and what processes went into determining this?
Both campaigns submitted lists of ballots that they said they'd proven were legal and ought to be counted -- and here's what the court thought of them:
"Upon the Court's initial review, it became apparent that the parties' spreadsheets identifying the relevant exhibits were inadequate and unreliable. This required the Court to complete an exhaustive review of all the records and documents submitted by either party throughout the course of the entire trial."
The court thus reviewed:
"...19,181 pages of filings, including pleadings, motions and legal memoranda from the parties; 1,717 individual exhibits admitted into evidence; and testimony from 142 witness examinations, including election officials from 38 Minnesota counties and cities and 69 voters who appeared and testified in defense of their ballots. The trial evidence comprised exhibits offered in three-ring binders that, when stacked, equaled over 21 feet of paper copies."
Don't think they're just complaining about the length -- not that anybody would blame them. The court is clearly establishing the level of diligence they went to in order to decide the questions at hand -- thus guarding themselves against any appeal on procedural grounds.
The court then explicitly rejects various calls for lenient standards in admitting new ballots, saying each one must be individually proved as fully legal. And when declaring that Coleman had the burden of proof to meet his claims -- they reject on multiple occasions the argument during trial that they should presume a ballot is valid without evidence to the contrary -- they add:
The Court gave both parties every opportunity to meet this burden. The court did not impose time limits on the length of the election contest nor did it limit either party's opportunity to call witnesses or introduce evidence.
The court will now review these 400 ballots to make sure they met every single requirement of the law. Some of them will definitely be counted, but an unknown number are simply being reviewed because the court needs the genuine article to figure out an ambiguous point.
Looking at the math, it's very bad for Norm Coleman. Even if all 400 ballots were counted and went more to Coleman, it probably wouldn't produce enough swing to overturn Franken's 225-vote lead. A more likely guess would be that some percentage are counted, and they break to Franken -- after all, the court systematically rejected Coleman's pleas for lenient standards.
Two weeks ago, Norm Coleman's lead trial lawyer predicted that the trial would likely end with Al Franken winning, and with a slightly larger lead than before -- then come the appeals. This new court order certainly seems to corroborate that prediction.




















Minn Post has Franken's lead at 272.
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http://www.minnpost.com/dailyglean/2009/03/12/7332/daily_glean_norms_universe_shrinks_as_frankens_lead_grows
Norm's universe shrinks as Franken's lead grows
By David Brauer | Thursday, March 12, 2009
Norm Coleman's ballot universe has shrunk to 1,359 votes, even as Al Franken's lead has swelled to 272, the PiPress' Rachel Stassen-Berger reports.
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March 31, 2009 5:46 PM | Reply | Permalink
We should probably add the word 'again' to every headline about the court dealing a blow to Coleman.
March 31, 2009 5:47 PM | Reply | Permalink
If all 400 ballots were counted, Coleman would need a 313-87 split to overtake Franken. There'd be about a 1 in a million chance of the votes breaking in Coleman's favor like that. Ans since not all 400 ballots will be counted, so I think it's safe to say that Coleman is finished.
March 31, 2009 5:48 PM | Reply | Permalink
And poor grammar/spelling strikes me again. I meant: "And since not all 400 ballots will be counted, I think it's safe to say that Coleman is finished."
March 31, 2009 5:50 PM | Reply | Permalink
Yep - stick a fork in Norm. He's done.
March 31, 2009 8:18 PM | Reply | Permalink
They know he's done. What's going on now is just delay, delay, delay . . .
April 1, 2009 2:37 AM | Reply | Permalink
Here is the situation that Coleman faces after the ballots are open.
If he is short than the interest of MN will supersede the interest of the national GOP party.
His delays will then have to go to the Senate where if they want a historic battle, than moral high ground will prevail.
Go ahead GOP filibuster at a time when we need to work together, sure close down the Senate---for how long---defending the right of MN to elect their senator will prevail and eventually the GOP will cave in worsening their political position going forward.
April 1, 2009 11:12 AM | Reply | Permalink
Dean Barkley(I) got 15% of the overall vote.
Some of this 400 will probably be for him.
March 31, 2009 5:56 PM | Reply | Permalink
Very few of those will be for Barkley. Keep in mind that these ballots come from lists that were submitted by both campaignns. As such, the consensus view is that both sides cherry-picked their own voters.
If there are any Barkley votes in there, it's due to human error by the campaigns and/or dishonesty from Barkley voters who spoke to the campaigns.
March 31, 2009 6:58 PM | Reply | Permalink
I’ll bet that the overwhelming majority of these were ballots submitted by the Franken team. Remember that the Franken’s lawyers said that the Coleman legal team had only documented six that should be counted?
On the other hand, most of Franken’s rebuttal was providing evidence for the ballots they wanted to be counted.
My guess is that Franken’s lead will expand to 400+ votes.
March 31, 2009 5:52 PM | Reply | Permalink
Good decision by the court and they are posturing it in a way to make it impervious to further legal challengs. As I thought all along, they gave Coleman all the time he wanted knowing that if the votes were still against him, he could not mount a successful appeal.
March 31, 2009 5:53 PM | Reply | Permalink
Since the ballots that are submitted will be counted on Tuesday, does that mean we can expect the court’s decision shortly thereafter?
There is nothing else for them to decide after these remaining votes are counted, is there?
March 31, 2009 5:55 PM | Reply | Permalink
There are still at least 2 questions still left besides these absentees. One is Coleman's argument about double counting and the other is his contention that the 122 ballots lost from a Minneapolis polling place should not be counted.
Atty Elias seems to think that these will be the subject of a separate ruling, although some reading today's order think they may have already been rejected given the wording of today's ruling.
Another issue Coleman brought up was his "equal protection" argument. It's unlikely that this will fly anywhere since he's essentially saying that elections are unfair and unequal and so all elections are invalid.
March 31, 2009 9:27 PM | Reply | Permalink
Bad day for Norm. FABULOUS day for lawyers!
March 31, 2009 5:57 PM | Reply | Permalink
I wonder if, after this is decided and Coleman appeals to the Minnesota Supreme Court, the traditional media will finally begin calling Coleman a "sore loser" like they were falling all over themselves to call Gore while the recounting process was still ongoing?
Somehow I doubt it.
March 31, 2009 5:59 PM | Reply | Permalink
Thanks for reminding us of this, yes. Where are all the people who were so excited in 2000 about bringing in George against that horrible wooden and aloof Al Gore? They had a rollicking big time of it, and they got their way, so they should be beating their breasts about their two-term victory, right? Gore just didn't have it, and their guy was great.
I'd like to see those cheerleaders standing up and taking some sweeping, highly-public bows once again now. The nation *owes* them in a *big* way and I *don't* want them to be forgotten!
March 31, 2009 8:27 PM | Reply | Permalink
Norm ought to have the courage, integrity and patriotism to end this NOW, the way he advised Al to concede when Norm thought he was the winner by so few votes.
But IOIYAR still resides systemically, perniciously and hypocritically, especially in the Bush-tainted legal system.
March 31, 2009 6:03 PM | Reply | Permalink
Norm sailed through the "sore loser" zone ages ago without even breaking a sweat. He's now breathing the rarefied air reserved for the "total asshole."
March 31, 2009 6:06 PM | Reply | Permalink
Well with Senator Craig hanging out in the bathroom at the Mpls airport trying to give some officer a blowjob do you think Republican senators have any dignity at all about what they do in Minnesota? Demand respect people! Quit electing Republican reptiles!
March 31, 2009 7:10 PM | Reply | Permalink
Now if the FBI would release it's findings on the alleged illegal monies, it would become a terrible, horrible, no good, very bad day for Coleman.
March 31, 2009 6:10 PM | Reply | Permalink
Good-bye, Norman Quimby. I'd like to say it's been fun...except that it hasn't.
March 31, 2009 6:11 PM | Reply | Permalink
Recurring nightmare!
March 31, 2009 6:13 PM | Reply | Permalink
I read the words "three-ring" above and had to look twice because I missed the word "circus."
March 31, 2009 6:21 PM | Reply | Permalink
Ditto!
April 1, 2009 6:26 PM | Reply | Permalink
I'm sure Harry Reid will be seating Al Franken as the new junior Senator from Minnesota real soon now.
March 31, 2009 6:34 PM | Reply | Permalink
I wouldn't count on Harry Reid doing anything. He has proven to be a spineless SOB. He still is asking "How high" when the republicans say jump.
March 31, 2009 6:58 PM | Reply | Permalink
Sorry. Forgot the sarcasm tag.
March 31, 2009 9:18 PM | Reply | Permalink
Strib reports that about half of the ballots are from Franken territory - Hennepin, Ramsey and St. Louis counties.
http://www.startribune.com/politics/national/senate/42221767.html?elr=KArksLckD8EQDUoaEyqyP4O:DW3ckUiD3aPc:_Yyc:aU1yDEmP:QMDCinchO7DU
March 31, 2009 6:36 PM | Reply | Permalink
It's not as simple as that. Hennepin is a big place with a lot of Republican pockets.
That said, I expect these ballots to break heavily for Franken — his side manifestly did their homework better.
March 31, 2009 7:07 PM | Reply | Permalink
Hey!!!
Surely the LIZARD PEOPLE will get a vote or two out of this!!!!!
March 31, 2009 6:36 PM | Reply | Permalink
THIS IS EXCELLENT NEWS FOR JOHN MCCAIN!!!
March 31, 2009 6:56 PM | Reply | Permalink
Everyone that I have read, and on CNN and MSNBC the assumption is that Coleman will appeal. Isn't it true that you can't just appeal because you don't like the verdict -- that there has to be a particular legal aspect that has not met a standard that allows you to appeal to a higher court?
Is there no sense of what is right to this? Can Coleman's lawyers, who seem out of their depth (or maybe it's just because they have absolutely no case) convince anyone that they were robbed?
This situation is an embarrassment and a travesty. It is time for the grown-ups to govern.
March 31, 2009 7:00 PM | Reply | Permalink
Grammar nit only:
"previously-rejected" doesn't need a hyphen. Adverb-adjective pairs rarely do.
March 31, 2009 7:01 PM | Reply | Permalink
Hey!!!
Surely the LIZARD PEOPLE will get a vote or two out of this!!!!!
March 31, 2009 7:09 PM | Reply | Permalink
During the recount challenge phase, the Coleman team focused on reducing Franken votes from the 'rejected absentee' pile. The Franken team focused on increasing Franken ballots. Al's strategy won out.
March 31, 2009 7:16 PM | Reply | Permalink
Why Norm why? Just save yourself and the other repugs the embarrassment and give up.
March 31, 2009 7:28 PM | Reply | Permalink
They're incapable of embarrassment. Winning is all they care about. If you need proof, you only need to look at the last 8 years of our presidency, the "K Street" project, and their current straight-faced claims at fiscal responsibility.
April 1, 2009 9:46 AM | Reply | Permalink
A few comments from the legal peanut gallery:
1) The court's statement - that the parties' summary spreadsheets offered for closing were not sufficiently complete and reliable, so they reviewed all the evidence - is intentionally ambiguous to provide cover and eliminate one more possible appeal issue for Coleman. In reality the court may have completely rejected Coleman's spreadsheets because they included inappropriate presumptions; and may have accepted Franken's spreadsheet or 95% of it, and used it as a checklist to review all the evidence.
2) Unless I missed arguments made by Coleman's team, they never provided sufficient legal argument to support their position of lenience in evaluating absentee ballots. I read the court's decision to be saying that they are pretty pissed at Coleman's approach to the litigation, and when I read between the lines, they are saying his arguments, and therefore his presentation of evidence based on those arguments, were bordering on frivolous. That would open Coleman to sanctions.
3) Footnote 37 on page 12 is very interesting, maybe. Here's what happens in trial:
1) A party has a piece of evidence marked with a number.
2) The item is identified, either by the attorney or a witness.
3) There may or may not be additional evidence or testimony about that piece of evidence.
4) The party OFFERS the evidence for submission. 5) The court makes a ruling, either admitting, rejecting or reserving on that piece of evidence.
According to the footnote, one of two things happened: either Coleman's team got through step 3, and then concluded that there was not sufficient basis to formally offer the evidence, so they moved on, OR they got through step 3 and just plain forgot to utter the magic words, "Evidence #___ is offered." If a party doesn't offer the evidence then the judges won't rule on its admissibility. If the case closes without that evidence being offered, then it will not be considered and has no legal bearing on the case, or on appeal. S.O.L. Classic boneheaded, bad lawyering. Happens all the time. Sounds to me like Coleman's team may have committed gross error. Again, S.O.L. This is not valid grounds for appeal.
4) Coleman has an upcoming intermediary opportunity to demonstrate further dickishness. Some of those 400 absentee ballots are going to be opened, and there may be at least one "lizard people" ballot that is questionable. Technically, Coleman may have the right to contest the decision made in open court whether to accept or reject such a ballot. Anyone want to bet whether he asks for a separate hearing, with a new panel, to rule on these new problems? My guess is the court would deny any such request, call it immaterial to the overall tally, and tell Coleman he can include that issue in any appeal.
5) Of interest to only us legal geeks is the percentage of the 400 considered that were part of Franken's spreadsheet vs. Coleman's. I'm betting that most of the 400 ballots to be considered were requested by Franken, by a longshot.
6) More a question that a comment: Are these 400 the entire remaining universe, or were there some ballots ruled upon during the trial, that were determined to be eligible for counting, either by court rule or stipulation, in addition to these 400?
March 31, 2009 7:44 PM | Reply | Permalink
Re footnote 37, it sounds to me like the problem was inability to, a decision not to or just plain forgetting to lay a foundation, not merely failing to offer them into evidence. Which means two chances in three it was yet another "have any of these guys ever tried a case before" moment from Team Coleman.
March 31, 2009 8:54 PM | Reply | Permalink
Norm apparently has the resources to appeal this to the Minnesota State Supreme Court, but not necessarily any promise of funding for an attempt to get into the Federal Court System. Assuming that Franken will increase his lead a bit as these ballots are reviewed and possibly counted, that probably diminishes the probability that wallets will open wide for Norm's cause. At some juncture the RNC and the SRCC have to begin raising money and budgeting for 2010, and not for hopeless causes.
I suspect we can expect several more rulings this week on outstanding matters, Norm's double counting argument, and the Minneapolis 3-1 missing ballots. These are the only arguments whereby Norm has the slightest hope to narrow Franken's current margin. I don't expect Norm to prevail on either.
The Court review should be complete next week -- then on to the State Supreme Court -- Court will probably give 2-3 weeks for briefing prior to argument, and then, alas, a decision. So Senator Franken sometime around May 1. He'll get to DC as the Cherry Blossoms fade.
March 31, 2009 7:57 PM | Reply | Permalink
What do you think Coleman will do about the money he owes the court and Franken when he loses? Mr. E says
It's my understanding that those are exactly the circumstances that are likely to land Coleman with a big bill payable to Franken to reimburse him for at least some of his expenses. I would dearly like to see both Coleman and his puppetmasters taken to the cleaners on this.
March 31, 2009 9:40 PM | Reply | Permalink
Well, you're an optimist! I hope you're right. This is the same Senate seat that remained open for 22 months after the 1924 election. That was when Norm's Republican antecedent, "Shyster Tom" Schall beat Magnus Johnson, one of the first Farmer-Labor party Senators.
Magnus complained that Schall had engaged in corrupt campaign practices--shaking down Mpls bootleggers for contributions, in exchange for which he was going to guarantee them protection from Federal raids. The Senate investigated (that was when Article I Section 5 of the Constitution was still in force; it has mysteriously vanished since then.)
Schall's campaign manager took the fall, and, it is said, ended up in federal prison. So Schall was finally seated. Then in his first floor speech, Schall used such vituperative and unprintable language to denounce his political opponents, that portions of the speech were stricken from the Record. Republicans---what a crew.
March 31, 2009 8:17 PM | Reply | Permalink
Whether or not Franken gets more votes is irrelevant. Coleman (Reublican Party) is winning because he is able to drag this out endlessly while critical issues are being debated in the Senate. Wake me when it's over (I said that four months ago, and I'll probably be back to sleep for another four months before the next court ruling gets handed down and a new appeal process begins.)
Ugh!
Minnesotans need to instead march in the streets and just demand a new election.
March 31, 2009 8:20 PM | Reply | Permalink
----
Minnesotans need to instead march in the streets and just demand a new election.
----
Oh yeah, that's sure to speed things along.
*slaps forehead*
March 31, 2009 11:17 PM | Reply | Permalink
A new election, Camco? Do you have any idea of the expense of that to Minnesota taxpayers? What a waste of money! Where are the conservatives crying out for "tort reform" in the face of Coleman's frivolous, self-serving behavior? I think that Minnesotans need to take to the streets and demand the seating of Sen. Franken, who won this extremely close election fair and square!
March 31, 2009 8:52 PM | Reply | Permalink
As much as there are days I'd like to shine up my pitchfork languishing in the back of the garden shed, in fact the last thing we need at this juncture is any appeal to anarchism or the mob. We have won every decision in this recount-contest thus far on the merits, so why take a wild swing born of frustration, when things are going your way? The DFL has other elections yet to win around the state next year, and Franken needs as much legitimacy as he can drain from this protracted contest.
April 1, 2009 4:05 AM | Reply | Permalink
As much as I hate to see Al's senate seat vacant, I think there's an upside to this for anyone who finds Coleman to be one of the most repulsive political figures in Minnesota history, as I do.
If he had been soundly defeated on election day, it would have been mostly forgotten by now and he'd be working on his gubernatorial bid. Instead, he's left hanging. The RNSC won't let him quit, but he knows he won't win. His image, tarnished as it was in many people's eyes, is now blackened. He has no political future in Minnesota. And, each time he's on the losing end of another court decision, it contributes to his 'death by a thousand cuts.'
Coleman's torment is my ecstasy.
March 31, 2009 8:52 PM | Reply | Permalink
How long can we expect the appeal process to take? Any chance that Reid might grow a spine or Pawlenty a heart and just seat Franken so we don't have to wait it out underrepresented?
March 31, 2009 9:05 PM | Reply | Permalink
Any chance? None to the first (Reid--a spine? Ha-ha-ha.)
and very slight to the second. While Pawlenty has no use for Norm (who elbowed him aside to run for Gov. in '98 and US Senate in '02,) Norm's lost cause is sacred to the bitter-enders and wingnuts who control Minnesota Republican politics, so Timmie can't be seen to "give in" to Al Franken in any way, shape, or form.
Unless President Obama does what Harry Truman did. Truman appointed Republican Governor Luther Youngdahl to a Federal judgeship; this cleared the decks for Hubert Humphrey and Orville Freeman to rise to political dominance in Minn. So if Obama puts Pawlenty on the bench . . . . even then, Tim's Lieut Governor probably wouldn't sign the certificate. Tim would have to agree to do it before being elevated.
March 31, 2009 10:07 PM | Reply | Permalink
Reid may make noises about seating Franken but I doubt that he will happily commit himself to the task. Franken has been vocal about Reid's on-going, wishy-washy fold a the hint of a breath of a thought of opposition for years.
April 1, 2009 6:10 PM | Reply | Permalink
I like this court ruling. It did the heavy-lifting for the higher courts, for whom the easy route now is "Yeah, what they said."
I'll bet that Harry Reid doesn't actually want Al Franken in the Senate. Franken will be much more pressure from the left (high-visibility, articulate, potentially-devastating pressure) and fewer excuses. Reid has every reason to hope Franken doesn't get seated.
March 31, 2009 10:35 PM | Reply | Permalink
I'm glad they're getting closer to the end, but this is an incredibly absurd and needlessly lengthy process that is denying both the winning candidate the opportunity of serving in the Senate and the people of the state their right to representation. The lengthiness of this process is really inexcusable. That all being said: Go Al!
March 31, 2009 10:46 PM | Reply | Permalink
I think the folks in MN need to take to the streets and march on Coleman's offices or house. Harass the prick nonstop until he bows out. This is a travesty of democracy and pure manipulation. Rights were never "given" to the people, they were taken.
March 31, 2009 11:17 PM | Reply | Permalink
The problem with that is, I 100% guarantee you that the GOP and their press minions will portray it as a violent orchestrated conspiracy by evil liberals (they will probably blame it on ACORN) to short-circuit Norm Coleman’s noble effort to defend the democratic rights of Minnesota voters from being usurped by partisan judges.
Instead of focusing on Coleman’s desperate dilatory tactics, the story will instead center on how Franken is unfairly (and possibly illegally) trying to keep all the votes from being counted. That Coleman once demanded that Franken give up when he, Coleman, had a lead, will be 100% ignored.
April 1, 2009 11:05 AM | Reply | Permalink
When will our national nightmare be over? Al will probably go down as the only legally elected senator who never served a day because Norm Coleman is such a big baby.
Can't someone step in and stop the Republican machine? This isn't democracy as we have come to expect it to be. Al Franken is the junior senator from Minnesota and they should just get used to it. He is needed in Washington, D.C.
April 1, 2009 11:54 AM | Reply | Permalink