Minnesota Court Tackles Double-Counting In Contentious Arguments
The Minnesota election court today heard a series of contentious oral arguments, with the decisions likely to have a huge impact on the future of this case.
First up, let's take a look at the Coleman campaign's motion to declare that "Rule 9" -- the set of procedures that the campaigns created for counting original damaged absentee ballots, rather than the duplicates made on Election Night -- was illegal. The Coleman has maintained that human errors in the labeling of duplicates and originals resulted Franken gaining an illegitimate gain, that votes were counted twice.
Lead Coleman lawyer Joe Friedberg argued that the rule created by the Coleman campaign was illegal, overriding the interests of the voters, and pointed out how the Secretary of State's office didn't want to go along. "And the Secretary of State abdicated his function by allowing two political parties to set aside a statute that was not designed for their benefit in the first place," he said. "You can't do that."
Friedberg turned to the evidence they'd presented: Statistical calculations about ten precincts in Minneapolis, the testimony of election officials that the mistakes involved are going to happen -- and inevitably he had to address the matter of Pamela Howell, the one local precinct worker they brought in to discuss this. Howell's credibility has already been seriously undermined because of the Coleman campaign's misconduct, for which they were fined, in hiding her name and evidence from the Franken campaign -- and she admitted on the stand that she's sympathetic to Coleman.
Friedberg said we nevertheless have her story-- and as I've reported, there is some truth to it -- and asked the judges "whether this woman would create this out of whole cloth, and if she had as much riding on this that she would come in here" and commit perjury.
Franken lawyer David Lillehaug fired back, saying Friedberg was misrepresenting the facts. "Contestant's counsel just argued that this was agreed to by the 'political parties.' No. That's not right," said Lillehaug. "This was an agreement between the Al Franken for Senate '08 committee, and the Norm Coleman for Senate '08 committee. In other words, contestants are bound by these agreements."
And Lillehaug made a striking accusation: Coleman didn't challenge this until the very end of the recount for a reason. The alleged reason was that pro-Coleman Wright County was the last county to finish recounting, and was especially full of duplicated ballots -- and lo and behold, he's not challenging any cases of double-counting in Wright. Thus, Coleman took down challenges and numbers on alleged double-counts in Democratic areas, and waited for the results to come in from Wright. "And then they added it up," Lillehaug said, "and said, 'Oh this didn't work out quite the way we wanted it to. Maybe Rule 9 didn't benefit us."
Lillehaug's case is that Rule 9 is legal, that Coleman cannot argue against it, and that evidence hasn't been sufficiently presented for the precincts in question.
Afterwards, Friedberg specified the remedy he wants: To re-recount specified precincts, sans Rule 9, and to give the Franken camp the opportunity to play the same game in areas they pick out. We'll see how this works out.




















So you agree to something that you believe is illegal and if it works out for you that's great, and if it doesn't then you want a do over because the agreement you entered into you now claim was illegal.
March 6, 2009 5:51 PM | Reply | Permalink
Isn't that just about the very definition of invited error?
March 6, 2009 6:01 PM | Reply | Permalink
Lead Coleman lawyer Joe Friedberg argued that the rule created by the Coleman campaign was illegal, overriding the interests of the voters, and pointed out how the Secretary of State's office didn't want to go along.
This indicates that the Coleman camp not only agreed to Rule 9, it was their idea to begin with.
March 6, 2009 6:38 PM | Reply | Permalink
An addition to the many definitions of chutzpah.
March 6, 2009 6:51 PM | Reply | Permalink
Voteforamerica.net did a full analysis of the so called double counting issue. They have a pdf showing 357 precincts in which one could argue that this may have occurred. You can find it here: http://voteforamerica.net/Counting_Errors_Precincts.pdf.
It takes a while to load and go through, but it is amazing in its detail. A number of these are the publicized cases in which a number of ballots were discovered during the recount, and, of course, the missing ballots. So not all could be double counts.
It shows 177 blue precincts on the list, or almost exactly 50%. Even if there are some instances of double counting, Coleman has not shown that either party benefited from it, and this document suggests that a full examination would show that it is probably a wash.
March 6, 2009 6:02 PM | Reply | Permalink
Now they want the campaigns picking and choosing presincts. This is as bad or worse than the campaigns having veto power over ballots. Maybe Franken and Coleman should just duke it out in the alley and leave the election officials out of it.
March 6, 2009 6:02 PM | Reply | Permalink
They might be able to pay their legal fees that way. I would pay to see that match! Kind of hard to accommodate all the spectators in an alley, but the Metrodome is probably available this time of year. LOL
March 6, 2009 9:32 PM | Reply | Permalink
"And then they added it up," Lillehaug said, "and said, 'Oh this didn't work out quite the way we wanted it to. Maybe Rule 9 didn't benefit us."
Bingo.
This is as good an illustration as you're ever going to find of the reasoning behind estoppel.
March 6, 2009 6:03 PM | Reply | Permalink
Friedman would be very sympathetic to Henry VIII's reasoning that his marriage to Catherine of Arragon should be annulled as incestuous - years after getting the pope to grant him a dispensation to overlook that very fact to allow him to marry her.
March 6, 2009 6:39 PM | Reply | Permalink
Nice one! I love a good historical analogy like this on a Saturday afternoon. Thanks for cracking me up.
March 7, 2009 2:07 PM | Reply | Permalink
This is a nut case which is going to provide a death-dealing precedent to all future close elections. I for one, want no part of having any court deciding the outcome of an election.
March 7, 2009 7:23 AM | Reply | Permalink
I don't trust the judges, they're allowing it to drag out too long. Coleman's case has shown to be too flawed in too many ways. This case should have been thrown out long ago with Franken as the winner.
Of course this is my non lawyer opinion.
March 7, 2009 8:25 AM | Reply | Permalink
I suppose the reason this is dragging on is to remove all chances of a successful appeal. I also think there is a benefit to the Democrats in MN. Coleman and the GOP look like plain obstructors that do not care about depriving MN of a Senate Seat at a crucial moment, only delaying the seating of a Democrat as long as possible. It has national GOP tactics written all over it. I really think people of getting sicker of this by the day. They see the country going down the tubes and the GOP playing self interest games and ignoring the real problems people face.
March 7, 2009 10:41 AM | Reply | Permalink
I've got an idea-- how about we agree to rerun the election, but bar Norm from running as a sanction for allowing his lawyers to make such specious, ultimately antidemocracy arguments? That should satisfy the letter of both sides' desires.
March 8, 2009 11:39 AM | Reply | Permalink