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Team Franken Tackles The Coleman Electoral-Uncertainty Principle

The Franken legal team made an interesting move this afternoon, in an obvious attempt to cut off Norm Coleman's suggestion that the election can be thrown out because of various instances of clerical errors by officials -- they have quite openly established in court that mistakes are made, and that a perfect election is impossible.

Franken attorney Kevin Hamilton has been examining Joe Mansky, the elections director for Ramsey County (St. Paul), about all the procedures used to recruit and train election workers, and the mechanics of absentee voting itself.

Hamilton then bluntly asked if there is any way to completely eliminate mistakes from this human process. "It's impossible," Mansky said, explaining that his responsibility as an election manager is to understand that mistakes are made, to plan for how they happen, and to minimize them.

"There's really no way to run a perfect election, with no mistakes?" Hamilton said.

Manksy responded: "I'm afraid that's right."

So why ask Mansky about this? It might not be a coincidence that Team Coleman started planting the seeds for this latest rationale when they were first questioning Mansky all the way back during the second week of the trial, when one of the Coleman lawyers asked him if there's a point at which the margin of error in an election can be higher than the difference in a close election, such that we can't tell who really won.

At the time, it was Hamilton who objected to Mansky answering. But now Hamilton has revisited the errors issue with Mansky, using it to illustrate that Coleman is asking the court to hold the election to an impossible standard.

Some other key moments this afternoon illustrated a disadvantage that the Coleman legal team really has against Team Franken. Hamilton moved to introduce CD-ROMs with a custom-filtered database -- that is, a report culled from the state's entire voter-registration database, containing info on the voters at issue here and with private identifying information not displayed. Hamilton said this was a better way to present evidence than what the Coleman team did, which was to get certified printouts for each individual voter from the Secretary of State.

Lead Coleman lawyer Joe Friedberg objected, and had to spend some time talking to DFL technological director Jared Nordlund about how this works. Friedberg was repeatedly asking if information was being manipulated, altered or deleted. Nordlund and Hamilton explained that they started with a certified copy of the full Secretary of State database, updated as of March 1, 2009, and have used the report-builder function in Microsoft Access to build a custom file with the voter information at issue in this case.

Friedberg's best-evidence objection seemed a bit odd, considering how the Coleman side got in serious trouble in the first week of the trial for using bad photocopies with key information removed or writing added on. But instead, he referred back to this episode, saying how his side got in trouble for using copies with "smudge marks."

The judges allowed it, after Hamilton showed that the information is all verifiable from the original certified copy of the state database. Later on, Friedberg began making similar inquiries about database functionality with Mansky. And two possibilities became clear: Either Friedberg was deliberately trying to cast undue doubt on the validity of the the Franken evidence, as inferior to the stuff his side procured through a much more costly and time-consuming method -- or he doesn't understand the technology.

At his post-court press conference, Coleman spokesman Ben Ginsberg noted that the court accepted the CD-ROM, but added: "We may have ongoing objections to individual voters using their manufactured and manipulated sheets, from their own construction."

(Ginsberg presser c/o The Uptake.)


15 Comments

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My impression was that Friedberg truly didn't understand the concept of writing a program that pulls specific info from 2 databases into an easy to read sheet. I was reminded of Bush and the "internets."

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SQL join say what?

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This is funny, but not surprising. I agree that the most likely explanation is that he didn't understand the technology. And there's nothing wrong with a lawyer not knowing about databases. But you would certainly think the team would have a counterpart to the DFL tech guy. Of course they may have, and it could be they were just taken by surprise here. But it looks a lot like every other stage of the post-election process...Al's guys have just been outclassing them in every way.

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I disagree about it being OK for Friedberg to not know about databases given how much time he's spent talking about how bad the SoS's voter database is. If he doesn't understand the fundamentals of how databases work, that casts a huge cloud of doubt on his arguments pertaining to them. It means he's never worked with even the simplest Excel or similar spreadsheet. His age and his occupation don't excuse him from missing this basic understanding - I'm going to be 58 this month, I don't do anything techy professionally, and I understand databases just fine. Modern people understand databases.

Now I understand better why some of Friedman's previous questions about how the MN voter database is updated and used sounded off - he doesn't know what he's talking about.

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I disagree about it being OK for Friedberg to not know about databases given how much time he's spent talking about how bad the SoS's voter database is. If he doesn't understand the fundamentals of how databases work, that casts a huge cloud of doubt on his arguments pertaining to them. It means he's never worked with even the simplest Excel or similar spreadsheet. His age and his occupation don't excuse him from missing this basic understanding - I'm going to be 58 this month, I don't do anything techy professionally, and I understand databases just fine. Modern people understand databases.

Now I understand better why some of Friedman's previous questions about how the MN voter database is updated and used sounded off - he doesn't know what he's talking about.

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I like that common sense reasoning... perfection is not an option when it comes to elections. I'm surprised he didn't throw in Murphy's Law just to make the point how ridiculous Coleman's assertion is about the election process has to pass the purity test in order to be valid.

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What I would be afraid of is that this argument cuts two ways. One outcome is that, "yeah," the court says, "you are right and this is all just silly, Senator Franken."

Another one, though, is that they say, "Well, if you are admitting that it's a flawed process, this margin of votes is too small to be a reliable indicator of what happened." (Or an appeal court says that.) If they did that, I think it would be right to accuse them of legislating from the bench, though. And more importantly, they would be opening a pandora's box. Every time there is a close election, we throw out the count? That sounds like something a given state legislature should be determining, not a court. For one thing, does a given state want to pay for an unbudgeted new election every time there is a close call? How can a *court* impose that? Seems implausible. UNLESS, Scalia somehow gets his greasy mits on this and comes up with some cockamamie rationale, which Thomas will immediately adopt, and then they need three more yes's, of which Alito might be the easiest sell with Kennedy not far behind.

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The reason why this argument fails is that "determining who got the most votes with absolute certainty" isn't a legal issue. Rather, election law in every state is about determining a winner. Most if not all states have a process for determining a winner that includes the initial count, recounts, and on down to flipping a coin if the result is tied. Once you're down to the "flipping a coin" stage, it's absolutely certain that the margin of error is greater than the vote margin, but that doesn't result in holding a new election and hoping for a clearer result.

For even Bush justices to make a "margin of error" argument, they'd have to declare that legislators in all 50 states didn't intend what they clearly did in writing the laws. They may decide to follow some bogus rationale, but that won't be it. This argument isn't intended for any court, it's a BS argument for GOP senators to filibuster on.

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The Franken team's brief citing precedents addresses a lot of these issues well. Even when an election was within three votes, with three illegal votes identified, the court in that instance refused to "allocate" votes speculatively because that would be an extraordinary usurpation in the face of uncertainty. Calling for re-dos every time an election is close, on the grounds that mistakes are always made, would be an even more breathtaking step when state law does not envisage this, and judges rarely like to do that.

Remember, while both sides have shown errors here, and there were no doubt some in earlier stages, neither side -- certainly not Coleman -- has presented any evidence as to how the votes would fall if corrected. That just cannot be known for earlier stages, and the best that can be done now -- which the judges seem to see -- is to find as many legal votes not yet counted as possible and count them.

Everyone fears a repeat of 2000 in the Supreme Court, but it is doubtful that even the SCUSA would like to do that one again; all of those justices will go down in historical infamy for imposing a terrible president on the USA. It gets even more dubious for them if they plunge into the minutiae of "equal protection" in every single close election in the land, arguing that errors always create uneven standards. Why would the Supreme Court want to get drawn into re-doing every close election? It would be a horror, and automatically delegitimating, for the Court. They will not do it, all the more because the Constitution assigns this sort of thing to the Senate (when a questioned Senate election is involved). The Supreme Court knows that, and knows that MN runs election as well as any part of the USA, so the last thing they will do is take up this case on equal protection grounds.

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This is an issue that is going to come up in the Senate (not the Supreme Court), and may be politically sufficient to allow the Republicans to prevent Franken from being seated, thereby stalemating the election. Possible outcomes would then be: MN continues indefinitely without a second senator, the MN Legislature passes a law calling for a new election and/or Pawlenty appoints an interim senator.

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You seem to be answering me, at least in part.

I don't understand why the Supreme Court got involved the first time, and neither did Justice Breyer. It sounds crude, but I have to leave open the possibility that Scalia, for example, obtains a portion of his knowledge base from listening in the car to Republican Leader Rush Limbaugh while on the way home to tune into Fox. If it sounds crazy, that's because it is, but it might be true as well. Deference to State Courts? Same issue as in Bush v. Gore. Senate-decides argument? After Bush v. Gore, I see no Overreach as beyond their reach. They had *NO BUSINESS AT ALL* getting involved based on the precedents, but they did. If there really was something wrong, they should have instructed the courts on what standards to apply, but they swung for the fences. *Why*? You are right to point to the horrifying result of them foisting on us the worst President ever (unless James Buchanan still holds that mantle), but the process is at least as disturbing as the result.

This time the loyal party-man Rehnquist is gone, that's a step in favor of your arguments, and it might be the biggest. I don't think that Roberts is prepared to indelibly disgrace his career and legacy (as Scalia has done) by going against your sound reasoning. But I don't trust Scalia in this one either, or Thomas (of course), or that scheming Alito, or even Kennedy-the-Drama-Queen. Result, though, even if it's as bad as my outside fears, they've still got only four votes. Unless Roberts has also drunk the Kool-Aid unbeknownst to me -- that would surprise me. So, you win! Knock on wood!

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I heard this case discussed on Hardball and on CNN last night. Neither "expert" had as much information as I have, thanks to Eric's excellent coverage. It was amazing to me how much of their answers were obviously pulled out of thin air, or maybe their asses.

If they had read Eric's commentary like we have here at TPM, they might have informed their watchers about the 'coin toss' option, for example as a way to explain why a redo election for a difference of 200+ votes is not a reasonable idea. They also would have been able to give a better explanation of what has gone on. AND they would have known that the campaign worker/witness, who was dismissed earlier came back and a fine was imposed rather than keeping her testimony out of the trial altogether.

On the other hand, if MSNBC or CNN had Eric as their expert, all their viewers would be far better informed.

So, a long-winded way of saying thanks to Eric for a job well-done!

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Thank you very much. I appreciate it.

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It's not just the talking heads themselves who don't know what they are talking about as well as Eric and his readers do. It's also their staff and producers. That says very little positive about TV "journalism."

As for thanks to Eric - I concur. He's doing an excellent job on this story. Are there any awards for on-line journalism like there are for the dead-tree journalists?

Is there any way to call up this series of stories all by itself? That and a summary would really be nice. Or is the summary in the works now, to be completed and published when the trial is over? Then the whole Franken - Coleman election would be worth a book, and a lot of coverage the book could be made up from is right here in TPM.

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Unfortunately, much ms coverage is relying on the hallway pronouncements of Ben Ginsberg and reaction to his pronouncements. You should see the Minneapolis-St. Paul newspaper! Sad. Lazy.

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