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Coleman Camp Keeps Mum On Whether They Will Appeal

Earlier this morning, right after the Minnesota Supreme Court heard oral arguments on Norm Coleman's appeal of his defeat in the Senate election trial, the attorneys for the two sides -- and Norm himself -- briefly took questions from reporters. The question on everybody's mind: Is this finished yet?

Norm Coleman
"We've come to an obviously critical point in this process," said Coleman. "It's more than about process, it's been about the opportunity to ensure that over 4,000 Minnesotans whose votes have not been counted to have their votes counted. I don't know what it's in those ballots, but if those 4,000 voters had lived in a different area, their votes would have been counted."

Note Coleman's claim that he does not know what's in the 4,000 rejected ballots (out of about 11,000 total) that his campaign selected. No rational observer of this process would believe such a claim if it had come from either side -- both campaigns clearly engaged in a thorough process of cherry-picking, selecting ballots where they either knew for sure that it was a vote for themselves, or had a decent idea based on geography. Coleman's legal team even made a reference to geography in one of their filings.

A reporter asked Coleman whether he'll appeal to federal courts if he loses here. He's apparently going to wait and see. "Again, let's see what the court does," Coleman replied. "Let's see what the decision is. At this point my firm hope, fervent hope, is to enfranchise over 4,000 more Minnesotans."

Another reporter asked: So how long will this all take? "I think the question, the most important question is, how long it will take to ensure that we enfranchise 4,000 Minnesotans?" He said. "Those of us who have had the opportunity to govern, we govern with the consent of the governed. And it's difficult to say you have that consent when you have a race that is separated by a few hundred votes, and 4,000 votes have not been counted."

Remember: The actual number here is that roughly 11,000 votes have not been counted. The 4,000 are from the Coleman camp's selected list.

Joe Friedberg
On the question of whether to appeal, Coleman's lead attorney Joe Friedberg said: "You never, while you have a case pending in front of one court, say you're going to appeal. That's a type of attempted intimation that nobody should engage in, and I never do."

Friedberg said that the remaining ballots that should be let in are from pro-Coleman areas, due to previous lax standards in Democratic areas. "It's really strange that the counties with the resources," he said, "like Minneapolis, Ramsey County, St. Louis County, were the ones that let the ballots in, while the good old conservative Republican counties followed the rules."

Friedberg also acknowledged that the Coleman camp knew they'd lost the trial itself a while ago, and were planning for this very appeal. "Our case is in the offers of proof," he said -- referring to attempted submissions of evidence that are not accepted by the trial court, but are saved for an appeal. "The offers of proof were put in from about the 15th of February on, because from the 15th of February on we were trying the case to this court, not the trial court."

The bottom line: Friedberg wants the state Supremes to remand this case back to the trial court, with instructions to count more ballots under a substantial compliance standard.

Marc Elias
Finally, lead Franken lawyer Marc Elias was much more subdued, seeming to present an attitude of cautious optimism.

"I do think it's fair to say that with a ruling from the state Supreme Court, we will be at the end of this process." He said that the state laws provided for a recount, which Franken won, and the election contest trial, which Franken won, and now to this appeal. "That should bring us to the end of the state court process, and hopefully for the end of press conferences like this."

A reporter asked if this is truly the end -- will Franken get his certificate, and will the Senate seat him? "I think that the court will do its job in reviewing the trial court and issuing its ruling, and the Senate will do its constitutional obligations as well," said Elias. He later added: "I am confident that when the state court process is concluded, and there is a certificate of election, that Al Franken will be seated."

(Special thanks to The Uptake for carrying the pressers.)


20 Comments

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Hey, I can answer that. I absolutely guarentee that they will not appeal.

Whether they petition for certiorari, is of course, another question.

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Whether they petition

Do they send out postcards between Supreme Court Terms? If not, I would think cert buys them till October, as long as they drag themselves across the finish line of the end of this year's Supreme Ct. Term, which I think they have by a good margin, considering that the service of the denial of the Minn. Appeal will be the key date.

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Where does this myth come from? The Supreme Court is always available. Assume Franken wins and Coleman wants to appeal further. He will have to get the Justice assigned to agree to put a stay on the MN SC order, otherwise, it will go into affect. (I think Alito is assigned to the Eighth Circuit). Orders just do not go into limbo waiting for the next Supreme Court term.

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Okay, maybe I am reading your comment wrongly. Others have suggested that the SC won't look at the case until October. Inasmuch as you are saying that a grant of cert is granted, then, yes, it wouldn't be until the next term to be heard.

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then, yes, it wouldn't be until the next term to be heard.

I know that. I am (as you correctly surmised the first time out) querying the timing of the "cert. denied." postcard...aka, "postcard denial". I just took my slacker ass over to google, and I still get no satisfaction.

I am not addressing the stay issue, which of course vests power in the particular Supreme for the locale of the case. I am premising my question on the assumtion that Pawlenty will not need to be stayed, but would use the pending writ as an excuse not to issue a certificate of election.

I doubt that a stay would issue, even while cert is pending. Unless Minn. is in Scalia's turf, in which case, I know nothing.

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a tidbit that will amuse the litigators (stumbled upon while researching the postcards in July question)

Plaintiffs have appeal denied by postcard. Claim from Law Firm:We never got/lost/misconstrued (who knows what the fuck story they floated, but it worked.)

footnote 4
"Plaintiffs' counsel noted that an associate involved in the litigation was suffering from flu during this period and was not in his New York office when the postcard probably arrived there. They also explained that the firm's New York office underwent a change of receptionists, who were responsible for sorting mail, at about this time. Affidavit of Gregor F. Gregorich, Esquire"

I'm gonna try that next time I blow a deadline.

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I'm not so sure. The SCOTUS left its ass hanging out in Bush v. Gore, but I don't think they'll be so eager to do so for Norm Coleman. The main reason to appeal in federal court is to try to get an injunction against the certification, which will give Pawlenty cover for refusing to sign it.

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Here's the deal, Goofy: Al Franken at the very latest will be seated this fall when Kay Bailey Hutchison resigns her Senate to run for Governor. Once, KBH resigns her Senate seat, Democrats will demand that Franken be seated -- or at least seated by a certain date -- in order for Sen. Hutchison's replacement to get seated on committees. Republicans know there time will soon be up with denying the people of Minnesota a second Senate seat.

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Time for Norm Coleman to hang it up!

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As frustrating as it has been... once's he's in, that's a seat in the US Sen that will be occupied until at least December 2014 by a wonderful icon of the synthesis between progressive intellectualism and pop culture that has always been within the brightest rays of American life. Franken's a hero!

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While I've never thought of him as exactly "a hero," I agree with the positive tone of your comment. I'm looking forward to Franken in the Senate. I know he can be deadly serious and he's smart and well-informed, but I'm hoping his humor will appear pretty often -- we need it!

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I am a Republican but not a very committed one at this time. However, this sort of silliness out of our party is exactly why I am so disgusted with Republicans. That and the hapless tone of the Bush Administration. I think history will have the evidence to show that the entire process of declaration of war on Iraq occurred for the reasons Bush stated, to be pure fiction. Due to exactly that, I tend to predict Democratic control of the government once again for as far as the eye can see. Further, I tend to believe that is as it should be when we tolerated such gross incompetence out of Bush and then even elected Bush again for a second term. Shame on us.

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Any bets on who is seated first, Franken or Sotomayor?

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Two points: While Coleman's attorney said they don't talk about appealing while a case is pending before the court, because that's intimidation, what a load of BS.

First, by mentioning Gore v. Bush in his papers and oral argument, that's a signal to the MN Court that they will be appealing their decision if it goes against his client.

Plus, there's been talk for months about Coleman going to the Fed if MN tells him to take a hike.

Second, if Coleman then goes to the Fed, this does NOT delay the seating of Franken. This is because the filing of an appeal does not stay or prevent MN doing what they want to do in terms of seating the winner.

Coleman's lawyers would have to file a writ in the fed courts seeking a court order telling MN that it cannot seat Franken until the case is concluded in the fed system.

That is not going to happen, no matter the political leanings of the fed judges. No federal court is going to order a state to do anything in regards to state elections, at least not after the fallout from what the SCOTUS did in Gore v Bush. (In legal circles the SCOTUS damaged its reputation by doing what it did to the Florida court.)

Lastly, on the merits I don't think Coleman is going to win so all this will be moot when the MN court issues its opinion.

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Second, if Coleman then goes to the Fed, this does NOT delay the seating of Franken. This is because the filing of an appeal does not stay or prevent MN doing what they want to do in terms of seating the winner.

True. But in this case it's what Tim Pawlenty wants to do that would matter. My guess is 2012 is on his mind.

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You are correct, I was addressing the court side of it.

But for sure,the Gov can say yay or nay to signing a certification declaring Franken the winner (whatever they call it) and saying that he is obligated to wait until the case winds through the fed system.

That would end Pawlenty's career because:

1. There is no legal basis or precedent for him to refuse to declare Franken the winner and refuse to seat him, so to speak.

This assumes, and I don't know if this is the situation, that MN law does not have provisions that say "If the MN state courts decide against a party having won a state election, the aggrieved party has a right to federal appeal and certification of a winner is stayed until federal appeals are exhausted." If there is such a law, that would be bizarre.

2. If he refused to declare Franken the winner that would show he puts politics and Repub interests above the will of the people (MN voters).

3. That would be a bizarre move by a governor, who are all about State's rights and usually wanting as little Fed intrusion into State affairs.

4. He would also be slamming his State's judicial system, basically saying that his State's appellate courts are too stupid to interpret a state case, apply state law and make a decision on a state election issue. He would be saying the Fed needs to come in and straighten things out.

A governor representing state citizens and doing the work of the people would not be perceived as doing those things if he says the Fed is better able to deal with this state matter.

I think Pawlenty has already hurt his chances for reelection (if he chooses to run, he may not if he wants to try for the presidency) and also has scarred his reputation.

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You are correct, I was addressing the court side of it.

But for sure,the Gov can say yay or nay to signing a certification declaring Franken the winner (whatever they call it) and saying that he is obligated to wait until the case winds through the fed system.

That would end Pawlenty's career because:

1. There is no legal basis or precedent for him to refuse to declare Franken the winner and refuse to seat him, so to speak.

This assumes, and I don't know if this is the situation, that MN law does not have provisions that say "If the MN state courts decide against a party having won a state election, the aggrieved party has a right to federal appeal and certification of a winner is stayed until federal appeals are exhausted." If there is such a law, that would be bizarre.

2. If he refused to declare Franken the winner that would show he puts politics and Repub interests above the will of the people (MN voters).

3. That would be a bizarre move by a governor, who are all about State's rights and usually wanting as little Fed intrusion into State affairs.

4. He would also be slamming his State's judicial system, basically saying that his State's appellate courts are too stupid to interpret a state case, apply state law and make a decision on a state election issue. He would be saying the Fed needs to come in and straighten things out.

A governor representing state citizens and doing the work of the people would not be perceived as doing those things if he says the Fed is better able to deal with this state matter.

I think Pawlenty has already hurt his chances for reelection (if he chooses to run, he may not if he wants to try for the presidency) and also has scarred his reputation.

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Thanks for that link. Was very informative.

I was LOL at the end when the newscaster asked how long it would be before the Justices (I hate when commentators call them "judges" because they are not judging anything, they are appellate "justices") issues a decision.

The expert then goes on to say how they will take as much times as they need, it's an important case, so people will have to wait even though the public wants the case decided.

He then explained the process of how the Justices deliberate and reach a decision.

After all that I expected him to then say maybe three to six months (here in California the justices generally have 90 days to issue a decision).

The guy then says "A wild guess maybe a couple weeks."

That was funny to us that follow this kind of stuff.

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How many voters is Coleman dis-enfranchising by this stupid tactic? Of the 11,000 votes that were rejected, and he's only challenging 4,000, what about the 50,000 other votes?

Stupid Argument Coleman, admit you lost, and go away.

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