Phoenix Woman

I would suggest that the reason that Coleman and his legal team have taken this action is that they see it as part of a strategy for winning the election. You seem surprised by the Coleman move — why? From the prospective of a candidate contesting the results of the Canvassing Board, it seem makes perfect sense — they represent a pool of ballots which, through a review process — the Coleman campaign hopes pick-up enough votes to ensure that he might win the election. The problem for Franken is that although the odd remain in his favor, these 12,000 ballots could still possible provide Coleman with enough votes to win the election. Also, if the Election Contest Court does not allow these ballots to be examined, the Coleman campaign might be in a position to appeal to the Minnesota Supreme Court on the grounds of “equal protect”.

You say this is “insane”. What is “insane”? And you suggest that Coleman’s request will anger members of the Election Contest Court. Why? They are seasoned justices, they know the law, and they had reason for thinking that an appeal to examine 12,000 rejected ballots. (If I remember right, when the issue was raised at the Supreme Court during the recount and the court ruled that the proper jurisdiction for considering such an appeal rested the Election Contest Court.)

Here is an on-line report from yesterday’s Minneapolis Tribune that would seem to support my perspective:

“Coleman’s lawyers said they proposed reexamining all 12,000 rejected absentee ballots during a closed legal hearing with the three-judge panel Friday. They said that while Franken’s lawyers seemed opposed to the idea, the judges were somewhat receptive. The campaign wants all rejected ballot envelopes transported to St. Paul by Friday.”

“The 900-plus rejected absentee ballots included in the state Canvassing Board recount, they argued, were added through a flawed process in which individual counties applied different standards before accepting them.“

“There’s a great disparity” in how individual counties initially examined rejected absentee ballots, said Tony Trimble, a Coleman recount attorney. “Some counties rejected very, very few. Some counties rejected a huge percentage — [a] double-digit percentage.”

“Coleman recount attorney Fritz Knaak said the proposal translates into counting all rejected absentee ballots as long as the voter was “alive on Election Day,” had properly registered to vote and did not otherwise vote in the disputed U.S. Senate election.”

“There was also speculation Monday that Coleman’s latest legal move was being made with an eye toward the recount’s next stage: a possible federal court challenge arguing a violation of the U.S. Constitution’s equal protection clause should Coleman lose before the three-judge panel.”

“He still has himself in a wonderful position to go to federal court,” said David Schultz, a Hamline University law professor. “A very smart strategy.”

“Coleman has proposed a series of trial stages running through February to hear his claims about absentee ballots and that up to 150 ballots from mostly DFL areas were double-counted while missing ballots artificially inflated Franken’s margin.”

Phoenix Woman The real problem for Coleman is that even if his request is granted and these 12,000 reject absentee ballots are re-examined, the likelihood of his picking up enough votes for him to win the election seems to be very small. Moreover, if the Election Contest Court is favorable to his request, then it would probably become more difficult to use the review of the those ballots as the basis for a “equal protect” appeal to the Minnesota Supreme Court. This is how I read the situation.

Actually, it is insane, Stephen. Here’s why:

If Coleman’s plan is to muddy the waters and drag things out so that everyone throws up their hands and calls for a new election — as has long been believed, and as his actions and those of his media surrogates (especially those quoted early and often by the StarTribune), have so far borne out — then stunts like this are hurting his cause. The latest polling shows he’d lose a rematch as Minnesotans are getting more and more ticked off at him.

As for the idea that the Coleman folks can just up and take this to the Feds if the three-judge panel and the Minnesota Supremes don’t make them happy: Well, they can try taking it to Federal court using the “equal protection” strategy (aka citing Bush v. Gore, which Scalia told us nobody was supposed to cite), but as Sara pointed out earlier, that’s not going to go very far, in all likelihood:

You have to begin with the Statute Law — in this contest, the party bringing the suit has the burden of proof. What the court will and can order would depend on whether Coleman comes in with proof of his claims sufficent to cause the court to issue an order. The court could, for instance, require bond for any expenses, and by law the loser pays all court costs.

Ironically, the whole Minnesota Recount system and statute law is based on the foundation of the decisions in the MN Governor’s recount case in 1962-63, Anderson V. Rolvaag. That decision is actually addressed in Bush v. Gore to the argument that State Election Law prevails in State Elections. The court in 2000 had to argue around Anderson v. Rolvaag on the grounds that the Constitution set a deadline for Florida’s vote count — the date of the Electoral College meeting. That exception would not apply to Minnesota, as we have no deadlines other than requirements as to when trials have to begin in a Contest. So in essence Bush v. Gore actually recognized Anderson v. Rolvaag as the lead precedent, the settled law. So no, I don’t predict it will successfully get into Federal Court. In ‘63 the case went through the Federal Courts — the decision Anderson v. Rolvaag was written by the 8th Circuit Appeals Court, and affirmed by the Warren Supreme Court. So given this — I don’t think the Feds will even look at the case.

Thanks PW. digg

You have concluded that the motivation of the Coleman campaign is to “muddy the water” and that this muddying the water is designed to lead to “a new election”. My understanding of the law is that Coleman could seek remedy for harm under the Equal Protection Clause if he was able to demonstrate that he was denied opportunity to examine all the 12,000 rejected absentee ballots in order to determine how many (if any) had been improperly rejected.

Given the fact that he has the right, under Minnesota election law, to contest the election, it would seem to me that he would have the right to examine all ballots that were cast to determine how many (if any) were improperly rejected. If you believe that he does have the legal write to contest the election, would you argue that he doesn’t have that right to examine all ballots that were cast in the election? Yes or no? And if there is a chance (and even though the odds might be small) that such an examination might led to a Coleman victory, wouldn’t it make sense for Coleman to make request to the Election Contest Court that he be allowed to examine those 12,000 rejected ballots — or would you say that such a request is “insane”. And if the three panel Election Contest Court ruled that he did not have the right to examine those ballots, wouldn’t make sense for Coleman to appeal that ruling to the Minnesota Supreme Court… on the grounds of “equal protection”? Or would you argue that he has not have right to appeal (that such an appeal would be “insane”)? And that if he were able to appeal to make such an appeal, would you argue it would make no sense to base that appeal on the Equal Protection Clause (and that to do so would be “insane”)?

Stephen, Norm’s people spent most of November and December trying to keep any of the rejected absentee ballots out of the count. Now, suddenly, they are doing a 180 and inverting the very arguments they used back then. You can’t tell me that the three-judge panel — or the Minnesota Supremes — won’t be noticing that.

Norm’s Senate career is done. Even the Senate Republicans recognize this: It’s why the Dems will have a three-seat advantage in Senatorial committees.

All Norm’s doing at this point is poisoning the well of public opinion against him to the point where he may not be able to revive his political career at all — say, by a run against State AG Lori Swanson, who has grown increasingly unpopular, in 2010. Considering that he was Rove and Cheney’s own fair-haired boy, the guy they made the Republican Party of Minnesota accept as their Senatorial candidate over Tim Pawlenty in 2002, that’s quite a comedown.

Phoenix Woman: I am sure that the three judge panel is noticing that the Coleman’s team is doing a 180 round-about. But I don’t think the fact that the Coleman lawyers are doing this 180 will necessarily have an effect on any ruling by the three-judge panel. And there are several good reason for thinking this: first, reasonable persons can change their minds (and I think that the the judges will — in the name of fairness — assume for purpose of their deliberation — that Coleman’s “flip-flop” was a “good faith” “flip-flop”); second, I assume that the panel will make its ruling based on how they view the merits of appeal that Coleman is making before them, and not on what Coleman might have argued previously.

Like you, I assume that Coleman will not win his appeal (or any other appeal, no matter how high it might go) and that Franken will, in all likelihood, be seated as Minnesota’s junior Senate. But it is not a “done deal”. Minnesota election law provides for a contest process to appeal the election results; that process and its procedures for an appeal are spelled out in the statue (an are fundamentally sound (are generally well designed to ensure that every legally cast vote is accurate tallied); Coleman is exercising his right to appeal the results of the election. The process is now beginning to play itself out.

I do assume he will lose he appeal he is making with the Election Contest Court. (And because Minnesota electoral processes and procedures are very sound, I do not think he will have any chance of winning an appeal with either the Minnesota Supreme Court or our with a federal court.)

You state that “Norm’s career is done”. This is not true. It is not true because he has initiated an appeal the results of which are not yet known (have not been determined). Franken’s lawyers are very bright and they know that Franken’s victory is not yet “a done deal” (that Norms Senate career is not yet done). In other words, they know that there is an outside chance the Coleman could yet win. This is why the Franken team is being so pro-active on behalf of their client. If they thought, like you, that Franken’s victory was a done deal, they would be sitting back with their feet on the desk smoking cigars. They are not doing this… yet.

PS: It is my understanding that the Franken team has also done a around-about or two and is now arguing against some things it had previously argue for. Am I not correct on this?
Stephen