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Minnesota Update: The System Is Broken -- Because Of This Case!

The Minnesota election trial has proceeded forward today, with the Franken team continuing to present voters (presumably Franken-supporters) who they think should have their votes counted -- and Team Coleman attempting to undermine confidence in the whole election system.

State elections director Gary Poser has been on the stand, and lead Coleman attorney Joe Friedberg has been going over the existence of clerical errors or out-of-date entries in the state's voter-registration database. Poser has said the system is reliable overall, but the Coleman camp is trying to leverage the existence of errors into demonstrating that the admission or rejection of absentee ballots was fundamentally broken.

At one point, Friedberg appeared to be on to something -- there are whole swaths of counties and precincts that still haven't entered in all the new registrations from Election Day, four months ago.

"Now why if you will, have the counties not finished inputting the data from Election Day?" Friedberg asked. "Just manpower problems?"

"Um, yes," Poser said, "and I believe they've also been answering other requests from the campaigns, data-practice requests that have also been interrupting their work."

You've got it: The Minnesota election system is broken, with a never-ending backlog of work preventing the input of voter data -- and it's this very disputed race that has done the job!

Some of Franken's rejected-voter witnesses appeared to be in good shape, and others were duds, which the Franken lawyers worked to dispose of once the problems came up. But one of the rejected voters proved to be especially interesting: Noah Kunin, a reporter for The Uptake -- the local news site that has so effectively streamed the various county and state proceedings, plus the press conferences, ever since this whole political disaster began.

Kunin's fundamental problem here is that he filled out a voter-registration form at the county office, and was ready to vote while he was there in early October, but they decided they had to mail him a ballot and have him obtain a special voucher form because of a government typo on his driver's license. It appears he did not fill out a new voter-registration form with the ballot itself.

"And you have been listening to this entire trial?" Friedberg asked during cross-examination, establishing the background here -- the fact is Kunin has watched all the testimonies, and spoken regularly with the lawyers for both sides on a regular basis.

"The entire trial," Kunin said.

Among other things, Friedberg asked Kunin a series of questions that seemed to call into question the validity of his legal residence. Kunin moves around a lot, and has crashed at the homes of friends, his parents, etc, ever since he had to move out of his prior home -- the government evicted him from his place right near the bridge that collapsed back in 2007.

It was unclear whether Friedberg was trying to disqualify Kunin's ballot, or else get it included and then leverage this towards getting Coleman votes in, or to use these clerical mistakes to undermine the whole system. Perhaps it was all three of them, to some extent.

Fun fact: Kunin's ballot was initially brought to public attention when he was put on the Coleman list of rejected ballots, which seemed odd in light of the fact that The Uptake has been serially attacked by the Minnesota GOP as a left-wing pro-Franken site. However, it should be noted that his voting residence during the election was in a Republican-friendly suburb. Now the Franken side has called him to help him get his vote counted -- as I've pointed out, this case appears to have spurred cherry-picking among the cherry-picking.

Late Update: An earlier version of this post said Election Day was five months ago -- it was in fact four months. I regret the error.


9 Comments

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So a Franken witness and probable Franken voter happened to be a reporter for The Uptake. Cue the conservative conspiracy theory in 3, 2,...

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So I still want to understand how Coleman can trash the entire MN electoral system then turn around and say he wants to rely on that same system for a fair election do over? Why don't the lawyers bring up this logical inconsistency to show Coleman is just stalling?

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The Minnesota election system has multiple levels of safety to ensure it is accurate and correct.

First, at the local precinct level, there are multiple elections officers and monitors, including members of his own party, that can point out errors as they happen and ask them to be corrected.

Second, there is the Recount Board which reviews close elections to can ensure the vote count is correct.

Third, there is a specific provision in the MN Statutes that if an error has been made and the candidates agree on the error, then the election officials are required to correct the error as specified by the agreement of the candidates.

Finally, there is the ultimate safety valve: the Election Contest. Any and all errors that the candidates do not agree on can be bought before the Election Contest Court where they can be finally corrected.

Has Coleman presented the ECC with all of the specific errors he wants corrected? If he simply shows one or two errors and then says, "these errors are happening every where" then of course they won't get corrected. Coleman needs to present every single error he wants corrected, with sufficient evidence to allow the court to determine that an error has actually been made and what it needs to do to correct it. Has he done that? Has the Court refused to correct these errors?

Unless and until that happens, Coleman has nothing to complain about.

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I agree with you about multiple layers of protections in the system. The one point on which I disagree a bit is the scope of the Election Contest.

The statute provides that:

"When a contest relates to the office of senator or a member of the house of representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election. The judge trying the proceedings shall make findings of fact and conclusions of law upon that question. Evidence on any other points specified in the notice of contest, including but not limited to the question of the right of any person to nomination or office on the ground of deliberate, serious, and material violation of the provisions of the Minnesota Election Law, must be taken and preserved by the judge trying the contest, or by some person appointed by the judge for that purpose; but the judge shall make no findings or conclusion on those points."

Thus, the Election Court can order improperly excluded ballots that were legal to be counted and rule as to which candidate received the most votes. It cannot, though, make any rulings on any other issues, including if there were improperly included ballots. Those issues must be resolved by the Senate in accordance with the Constitution.

Also, this court cannot order a new election; indeed, it cannot make any findings that there were "deliberate, serious, and material violation of the provisions of the Minnesota Election Law" that would warrant a new election.

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The ECC can make findings on any issue relevant to the question of which candidate received the highest number of legally cast votes. This would INCLUDE the question of whether there were improperly counted ballots. If Coleman knows of any, he has every right to present them to the ECC and ask them to take this into account in its determination of who received the most lawfully cast votes.

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I understand your point, but I still think that the issue of improperly accepted ballots would fall into the category of a "deliberate, serious, and material violation of the provisions of the Minnesota Election Law." Your reading would allow them to get into issues relating to "material violations of the Minnesota Election Law" (i.e., the failure of local election officials to apply the standards for the acceptance of ballots) and would read these provisions out of the statute, which statutory construction rules would not allow.

The principle that you are advocating -- allowing the court to get into all violations and make sure it is reviewed in full -- makes sense, but I just do not think that the statute or the Constitution allow that.

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"Third, there is a specific provision in the MN Statutes that if an error has been made and the candidates agree on the error, then the election officials are required to correct the error as specified by the agreement of the candidates."

I did not know that was statutory. That explains why the Court had the two candidates come up with ballots they could agree on.

I also don't get why there was no motion to dismiss when Coleman rested his case. Well, I guess he has motions pending, but why is Franken presenting his case? Is there still some matter of law or fact to be tried, given that Coleman didn't come up with the needed number of net votes?


??


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A partial motion to dismiss (partial = some but not all claims) is expected shortly. Probably tomorrow or Friday. There will be no motion to dismiss the entire contest, nor would the Court grant one, because there are approx 1000 more ballots to count (if you include the absentee ballots currently being inspected for voter registration forms in the secrecy envelope), more than enough to swing the outcome.

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I guess it make sense to check out all possibly acceptable ballots like those, from both sides, at once rather then examining Coleman's evidence first. That is what should have happened during the recount, but apparently didn't. The court is doing this to bend the law - allowing some ballots to be evaluated even if they technically did fail to meet the absentee ballot statute. That is good for those voters. It is bad for due process in re contest due process at this point. I think the court is making an error.

But in another sense it seems logically and legally backwards -- Coleman has not made a prima facie case, he's only blown smoke (raised doubts). His evidence has not been presented yet yet Franken is having to respond. So the process of the trial is a bit logically convoluted by having Franken present his side qua "defense" at this time, in my view. While that might be warranted, it makes a messy situation messier, in my strict view.

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