Team Franken's Closing Arguments: Franken Won, And Coleman Hasn't Proven Anything Otherwise
The closing arguments in the Minnesota election trial are now over, bringing the proceedings in this trial itself to an end. We now await the ruling from the court, and any subsequent appeals that might occur.
First up, let's take a look at Franken lawyer Kevin Hamilton's closing. Hamilton began by rebutting the various claims of Team Coleman, starting with the allegation of errors in the election. "No election is perfect," said Hamilton. "No election has ever been perfect. No election ever will be perfect. That's how our democracy works -- it relies on citizens, it relies on volunteers."
However, Hamilton said Coleman has failed to meet his burden of demonstrating that the errors not only occurred, but that they made a difference in the result, but has only spent his time deriding the integrity of the state's electoral system: "To disappointed candidates who would seek to tear down the system in an attempt to overturn results they wish were different, I would say: Prove it."
Hamilton then went over the three major claims from the Coleman camp, one by one, then proceeded to two counter-claims from the Franken side.
Rejected Absentees
On the subject of absentee ballots that Team Coleman says were rejected improperly, Hamilton pointed to the spreadsheet submitted by the Coleman camp, laying out the evidence -- or the lack thereof, with many blank cells throughout. Hamilton also said it's important to look at the legend explaining what the letter codes mean: "Reg" means the voter wasn't registered; "FPCA" means there wasn't a Federal Post Card Application found; "SVRS" means the voter isn't currently in the Statewide Voter Registration System, though the Coleman camp thinks the SVRS is wrong and incomplete on this point.
"Again, this is not our spreadsheet, this is contestant's spreadsheet," said Hamilton. In all, Hamilton counted only six ballots with completed evidence.
Double-Counting
Hamilton then addressed the allegations of double-counted votes, based on human errors in the process of labeling duplicate copies of damaged absentee ballots. He pointed out that Coleman's claim has shrank from two-dozen precincts to only 10 heavily pro-Franken precincts, and even for most of those they didn't submit testimony to show the circumstances of those precincts, to show it wasn't other clerical errors that can create the mathematical discrepancies.
And he made sure to talk about Pam Howell, the sole election worker brought to testify about the circumstances in her precinct -- and who was shown to be a Republican who actively sought out Coleman's lawyers, refused to speak to Team Franken, and was kept concealed from them so that she wouldn't be nailed down to a piece of testimony.
And Hamilton reminded the court how the process for handling duplicates, known as Rule 9, was formulated and approved by both campaigns. "Contestant's attempt to back out of their agreement, both here and before the state canvassing board, is as cynical as it is groundless," he said, adding: "Contestants are estopped from backing out of it. They have waived any claim."
The Missing Ballots
On the third Coleman claim -- that the state canvassing board should not have gone to the Election Night totals for a deep-blue precinct that lost an envelope full of ballots -- this was fairly straightforward. Hamilton pointed out that the Coleman camp has now stipulated that the ballots did indeed exist, and the court has cited case law showing that using the Election Night totals is the proper course.
The Counter-Claims
"We frankly don't have a lot to challenge," Hamilton said, pinning down only "a few isolated errors." He said the campaign has proven other cases of missing ballots -- albeit much less dramatic than the example in Minneapolis -- and said that in total Al Franken ought to gain a net 52 votes. And he showed the campaign's own spreadsheet of absentee voters, arguing that they have submitted full and complete evidence to get 252 voters in -- and that's in addition to the nearly 50 voters from Franken's list that the court has already granted permission to have counted later on.
The Conclusion
Hamilton concluded by saying that the evidence shows Al Franken won the most votes: "Al Franken is Minnesota's Senator-elect. He is entitled to the certificate of election. Contestee respectfully submits that judgement should be entered rejecting the election contest in its entirety, and granting judgment to Al Franken on his counterclaims."
















Great job, Eric. What are you going to do when this is over? Will it ever be over?
What do you expect to happen next?
March 13, 2009 2:02 PM | Reply | Permalink
School of Law
Rutgers
The State University
March 13, 2009 3:58 PM | Reply | Permalink
It's hard for me to imagine deliberations will take very long. What's to deliberate? The judges set out the standards. All they need to do is decide which ballots meet those standards and which don't and if there are enough of the former to change the result.
March 13, 2009 2:07 PM | Reply | Permalink
"...has shrunk..." not shrank...
Love,
That Guy
March 13, 2009 2:07 PM | Reply | Permalink
Honey I has shrunk de kidz.
March 13, 2009 3:03 PM | Reply | Permalink
Has shrunken?
March 13, 2009 5:15 PM | Reply | Permalink
Both "shrunk" and "shrunken" are accepted past participles for the verb "to shrink." I think "shrunken" is normally used when the past participle is used as an adjective ("shrunken head," for example), and "shrunk" when it's used as a verb.
March 13, 2009 6:05 PM | Reply | Permalink
How many uncounted, but subject to being counted by the courts rulings are there? If there are more than the current vote delta, don't they have to open & count them all before they issue a ruling?
March 13, 2009 2:23 PM | Reply | Permalink
Mitch McConnell wants to take it to the Supremes. Does he think they'd rule the same way they did in Bush v. Gore?
In the tradition of 7-Up being called the Un-Cola, the GOP can now be called the Undemocratic party.
March 13, 2009 2:39 PM | Reply | Permalink
I think the SCOTUS would like to rule for Coleman. There's one big difference between this case and Bush v. Gore. In this case there is a body (the US Senate) with the constitutional authority to tell them to bugger off and the ability to make it stick. I expect the SCOTUS will decide it's better to pass than to be made to look impotent.
March 13, 2009 2:44 PM | Reply | Permalink
Besides, didn't SCOTUS say Bush v. Gore was not to be considered a legal precedent and not to be used every again? A one-time-deal only?
March 13, 2009 4:59 PM | Reply | Permalink
next step, another legal brief and then thank you sir may I have another---April Fool's Day would be apropos for Al to take the oath of office.
March 13, 2009 2:45 PM | Reply | Permalink
I'd say that that sums-up Coleman quite nicely.
March 13, 2009 2:49 PM | Reply | Permalink
Great coverage Eric!
I'm hoping, while waiting for the verdict, you can put together a longer article or spreadsheet showing the claims raised by each party, the evidence, if any, and the numbers of votes at issue with each claim, and the response to each claim.
I'm also curious about what motions have been made by either side that have not yet been ruled upon.
(When I go to trial, I keep track of that information, and often offer a spreadsheet to the court as a checklist to make sure everything that needs to gets ruled upon actually gets addressed.)
Or are you saving that for the book you're going to write?
Also, don't some of the arguments address ballots that have not yet been opened and/or ballots that are opened, but have not yet been counted? If that's the case, it seems reasonable that the judges have to make initial rulings, and the parties will probably come back and argue about some of those things, prior to a final ruling being entered.
Last question: did either side offer any rebuttal evidence after Franken rested?
Oh, and my 2 cents, which I've said before: This will go straight to the Mn. S.Ct. for review on an expedited basis, and will be affirmed, probably without comment. The next step is the U.S. S.Ct. which will NOT grant cert. on this case because they want nothing to do with it.
Any collateral attacks in Fed. district court should not be grounds to hold up the certificate because those claims would be outside the election process.
March 13, 2009 2:56 PM | Reply | Permalink
Oh.
But yes, they did produce a spreadsheet. Last week they submitted one with all of the evidence to date. I believe they're turning in another on Monday with all data reflected and references to which numbered piece of evidence backs up each data point.
Coleman also turned in speadsheet which is most notable for interesting column headings. For instance, one of the column headings refers to the state database lookup (RSVF?? anyway 4 letters beginning with R), but what it means is not that the ballots checked out on the database, but that they didn't. Several other columns were similarly labeled in the negative. I'm sure that makes for confusing reading.
March 13, 2009 4:56 PM | Reply | Permalink
Is it appeal proof?
Please, no appeals, NONE.
March 13, 2009 3:41 PM | Reply | Permalink
Please let this farce be over with soon. We need Franken's vote.
March 13, 2009 3:45 PM | Reply | Permalink
Eric, from what I've read (all of which has come from you, by the way, since you have the best coverage) it seems that the judges erred on letting Coleman's evidence in, rather than excluding it. Does it look like they're doing that to take away arguments for Norm to appeal?
March 13, 2009 4:09 PM | Reply | Permalink
That has been the opinion of several commenters here who seem to be well-versed in the way the system works, that the judges are inclining to decide the case in Franken's favor, and have therefore given Coleman's side maximum leeway wherever it isn't going to affect the ruling anyway, in order to narrow the possible grounds for appeal.
March 13, 2009 6:17 PM | Reply | Permalink
Eric, from what I've read (all of which has come from you, by the way, since you have the best coverage) it seems that the judges erred on letting Coleman's evidence in, rather than excluding it. Does it look like they're doing that to take away arguments for Norm to appeal?
March 13, 2009 4:11 PM | Reply | Permalink
When judges prevent the admission of evidence, that decision can be appealed as an incorrect application of law. When judges let evidence in, then rule that it did not persuade them to rule in favor of the person offering the evidence, the ultimate decision can only be appealed on the basis that the judges decision was so bad that no reasonable judge could have made that conclusion or the law prohibited such a decision, which is a much, much harder standard to meet.
Conventional wisdom is that when judges start allowing in a lot of questionable evidence for one side, it is because they are going to rule against that person and want to limit appealable issues.
Pretty much consensus on this blog that the judges are doing this to Coleman.
March 13, 2009 4:27 PM | Reply | Permalink
You also may have noticed that the judges didn't rule on several motions before the court in the last couple of weeks. For instance, last Friday Friedberg made an impassioned plea to toss Rule 9, the one about counting original vs. duplicate ballots. Today in his closing Friedberg gave a somewhat shortened version of the same. Why didn't they rule? I suspect that they are going for as an appeal-proof case as can be made. They haven't shut him down entirely since the Feb. 13 ruling where they refused to go back and un-count so called illegal ballots cast in the polls on election day. Coleman thought they ought to do that because they claimed that the degree of proof being required of them was greater - and therefore unfair - than proof that was accepted at the polls on election day. Of course, an "un-count" amounts to a re-do.
I also didn't hear a ruling on Franken's motion from last week to either toss or pare down Coleman's case. I suspect they came to some agreement in chambers as there were only 3 items being argued this morning. Or maybe I just didn't hear. It could happen.
March 13, 2009 5:07 PM | Reply | Permalink
Beetlejuice is right! the SCOTUS decision on Bush v. Gore specifically says this is a one-time thing that can't be used as a legal precedent.
Coleman's lawyers will be crushed if they use it.
March 13, 2009 5:24 PM | Reply | Permalink
Grammar nit, Eric: shrink, shrank, shrunk. "He pointed out that Coleman's claim has shrank from..." is incorrect; it should be "He pointed out that Coleman's claim has shrunk from..."
This particular verb has alternative forms of both past tense and past participle; "shrunk" can be used as past tense, and "shrunken" can be used as the past participle. But the construction "HAS + verb" always uses the past participle: "has shrunk", "has shrunken", but never "has shrank".
March 13, 2009 5:56 PM | Reply | Permalink
Ooops, I see a fellow Luddite got there before me...
March 13, 2009 6:06 PM | Reply | Permalink
Instinct tells me SCOTUS won't take this case. I think they've had enough of stealing elections.
March 13, 2009 6:02 PM | Reply | Permalink
To apply some left-brain analysis to your right-brain approach:
When Bush v. Gore reached the S.Ct. the conservatives on the bench knew they had a slim majority, and their decision would decide who would be appointing the next justices, and who would be wielding the veto pen. By anointing Bush, they secured the protection of their majority, and vetoes over congress trying to undo any decisions they made. The legal reasoning of Bush v. Gore was embarrassing, illogical and inconsistent with prior SCOTUS rulings, which may be why they explicitly declared it would have no precedence in any future case, but that wasn't enough to keep them from placing the puppet of their choosing on the throne.
In contrast, affirming Franken erodes their conservative cred (which could affect their future speaking engagements) but reversing and naming Coleman the winner does them really no good. With or without Franken, Obama will be choosing judges and justices for the next several years, and Congress and Obama already overturned the Ledbetter precedent as one of their very first acts. Ruling in favor of Coleman would put huge bullseyes on their silken robes, and would invite further legislative reviews of their corporate-friendly decisions.
As the final arbiters, SCOTUS gets to rule or choose not to rule, and is not required to explain why.
Shorter: Nothing to gain and lots to lose by taking case. So SCOTUS denies cert. without comment, and case is over.
March 13, 2009 6:52 PM | Reply | Permalink
Just a thought that recently occurred to me.
Coleman's argument seems to me to be that the election of Franken has not yet been proven beyond a shadow of a doubt, but that's a criminal court standard. This one, unless I am wrong, is a civil court trial, where the final decision can be determined by a preponderance of the evidence.
A 250 vote edge means no coin toss, even if Minnesota law called for that. This has followed the rules, which do not unfairly bias the decision against either candidate until after the trial is over and one has lost. Then, of course, the loser is going to cry "Shut up and deal." But election rules are made to be followed after the election to prevent this exact kind of legal challenge. And if anyone ever thought that elections provided an exact vote count, this trial certainly will disabuse them of that fantasy. Again, that's why there are rules established prior to the election.
Assuming the courts decide to go with Coleman's argument, then democracy and elections are dead. The courts will decide every election after it is over, until elections are eliminated. Somehow I suspect no reasonable court is going to go for that choice.
That should make this court's decision open and shut, and the state supreme court and the federal courts should run from it as fast as they can. Any further courts who take this case is buying into nothing but trouble that the legal system is not designed to deal with in a democracy.
So what am I getting wrong? Anything?
This court rather clearly bought into this mess through the logic applied by Mr. E. above. I'm sure they are ready to get shed of it. But they have to avoid reversal at all costs. Otherwise it is a pile of crap that will come right back and land in their laps again. If I am correct, this explains the slow going and the refusal to overrule the Coleman camp's idiocies and flat out lies.
That would make this over in the courts after the end of the month when the three judges hand down their decision. (I hope.) Assuming, of course that Coleman doesn't do some successful justice - shopping and find some wacked-out right-wing ideological idiot to try something else.
March 14, 2009 12:46 AM | Reply | Permalink
I imagine the next step will be for the Senate Republicans to attempt to filibuster in order to keep Franken from being seated.
March 16, 2009 11:21 AM | Reply | Permalink