Well wasn't THAT a big letdown on Monday! We were ready for an epic contest between the lawyers and the Election Contest Court (ECC). I waded into legal thickets, endured a visit to the sadistics division, came up with a few lawyer stories for popcorn, even invited everyone to use this as a liveblog. All sorts of heavy weight Kossacks recommended including the great Orange one himself and......
18 minutes?
OK to be fair the ECC and the lawyers DID spend the morning in chambers thrashing things over, so a lot of the motions might have been addressed. But still.......
Back to business today at 9:00amCT on the UpTake.
Franken leads +249 (last change: 2/10, +24)
No deadlines looming, so it could be just another day. (Hoping for the reverse jinx with that statement!)
No decision from the MN Supreme Ct. on Franken's Motion to force a Certificate of Election. (Day 12 since hearing)
Thats the short & sweet. The long and tangy is past the Orange fold.......
Handy Links
King Banaian is NOT a large, subtropical tree that has multiple trunks. It is the name of an economics prof at St. Cloud State Univ. (He is also a noisy ultra-con of the Repub. persuasion.) The Coleman Team wants him to testify for them as an analyst showing county rejections of absentee ballots are so statistically whacko that the ECC needs to just start over. The Franken Team has filed a "Motion in Limine" to basically keep him off the stand, or if they can't, severely limit the scope of his testimony. ("In Limine"=Latin "at the threshold"; as noted yesterday, the lawyer's version of "fighting them over there so we don't have to fight them over here.")
Kossack Vote for America DESTROYS Banaian's credibility by, you know, the shortest and most direct approach with these wingnuts: using their own words against them. (In this case the words are UNDER OATH, taken from a deposition in late January.) Team Franken can just do a download and drop this into the cross-exam without even breaking stride.
Vote for America is a denizen of the Kossack Sadistics division but his diary is restrained on the numbers and warp-core laser focused on the facts. (He also answers some poor WineRev's stat questions about Franken and about birthdays.) A superb read (ref: contes ANT= Coleman; contes-TEE = Franken): http://www.dailykos.com/...
1) Election Contest Court-Episode XXII: Can Coleman Present Completed Legal Homework?
We will see how proceedings go today and forward. Team Coleman (actually both sides, but Coleman is putting on his case right now so it affects him first) will now have to meet the standard laid down by the Court on Friday: it is not good enough to show a given absentee ballot was rejected by local officials.
Now for a ballot to be accepted by the Court either side has to show a rejected ballot
a) was rejected because of error by election officials and NOT because of an error on the part of the voter (sounds tougher than it is; the local officials did not make many of these mistakes and nearly all of them are pretty obvious) AND
b) otherwise meets the legal tests for a properly cast absentee ballot (all 4 legal tests, and assumes it arrived on time).
This b) is, if not new, at least explicit now. The Court will no longer buy the Coleman song-and-dance that asks a county auditor on the stand, "I show you this rejected ballot.....do you NOW believe it should have been rejected?"
Instead the Coleman lawyers (actually their paralegals and staffers have to do some real digging and work so the courtroom-ers) have to say something along the lines of "I show you this ballot from Ingabord Larson. She filled out the application and her signature matches between the app and the absentee ballot. The address on the application and on the outer, mailing envelope match. She is registered to vote (either according to county rolls or via the enclosed voter registration card). She did not vote in person according to the voter sign-in log from the Yucatan Township (really!), Houston County, precinct 6. The vote arrived in the Caledonia, MN courthouse on Nov. 2 in time for the election. Why was it rejected?"
So we'll see.....
2) Question for the House
I got up yesterday's diary before 7:00 and was able to blog along. But late morning I had a thought I posted late in an Update. I think its a puzzler for the ECC and I'd like to hear your thoughts. (Legal types and logicians get first crack but c'mon! Everybody play!)
In some cases the absentee ballot application is missing at the local level. (You apply for an absentee ballot and leave/mail in the application to the local elections board.) The 2 sides will argue:
A) If the application is missing (through no fault of the voter; and they can't GET an absentee unless they apply for it), but otherwise the absentee ballot is up to snuff legally, should the vote count (Team Coleman)? There is something here; the ECC has been sympathetic to voter intent when there has been error by the officials. And it is only fair....
B) Or is the application's signature needed for comparison to prevent fraudulent voting, i.e. prevent someone from going to Kinko's with a blank absentee and running off 50 copies for each member of the Fergus Falls "God Loves Only Republicans" Club (Team Franken)? There is something here too. Fraud prevention is even on the GOP list (today) and this court will take this quite seriously.
C) Darker scenario: Suppose a county auditor named Ingrid Bergman knows God wants Al Franken to be senator. So she "arranges" for absentee applications that are from a precinct that usually votes 80% Republican to "become lost/disappear" in a way that seems plausible/innocent. The auditor is disenfranchising voters (by subverting (B) and through no fault of the voter) but the fraud is at the office level.
If the ECC allows the ballots w/o matching up the applications (A) then a (B) scenario is possible but (C) is averted.
If the ECC turns down the ballots because of missing applications (B) or (C) then voters are disenfranchised, possibly because of innocent error or because of successful fraud (C) (and something like this was one method of voter suppression in the South during the days of Jim Crow).
So esquires and everybody else out there: how does a Court rule on A,B,C? How does a legislature write laws to ferret out a crooked local official?
3) Morale Issues: Each Team
Yesterday was disappointing and the grind (I mean this IS diary 77 in this freakin' series!) is wearing. But consider 2 items from Horse Denture Brigade.
a) The Coleman attorneys yesterday gave the ECC a letter asking them to reconsider last Friday's Order: (excerpted from MN Democrats Exposed; nothing like going underground once in while!):
In a letter asking the three judges to reconsider their ruling today, attorneys for Norm Coleman noted that the panel’s holding overrules decisions already made to count similar ballots cast in the Minnesota Senate election........
"The current situation would result in a widespread equal protection problem by disqualifying a large numbers of ballots that are the exact same as hundreds, if not thousand, that have already been counted," said Coleman recount attorney Ben Ginsberg. "Without a proper review and remedy of this situation, we would end up with many votes being counted that do not meet the new standards now set by the court. It is critical that we get an immediate review of the standards so this issue can be addressed. Without a remedy, we will be faced with a widespread equal protection problem that would not only violate the law, but create Constitutional legal issues that would only delay this process further."
Once again they are projecting on a perceived foe (instead of the Franken side, this time the ECC; Rethug SOP the last decade or so). Team Coleman wants all the 12000 ballots reviewed, (including for instance 933 ballots they already stipulated should be counted; and another 174 they stipulated were late). (Estoppel anybody? Invited error apply here?) They want a whole "new" set of standards, and if they don't get them they are going to run to the federal courts on a 14th Amendment "equal protection" squeal.
But from a morale standpoint, this brave blogger over at MDE notes:
Leroy Jenkins Says:
Friday: Norm Coleman is confident, got the bulk of the ballots he wanted.
Monday: Norm Coleman is wetting his pants. Admits that he lost a lot of votes that he needed to make a legitimate run at winning.
b) CNN reports Al Franken is having conversations with Harry Reid and letting himself be called "senator-elect" at a meeting of Minnesota mayors. He's looking at committee duties and being posted on pending bills. Meanwhile Norm Coleman has some invisible job with a Jewish Republican lobbying group that apparently pays him well and requires him to sit in Minnesota courtrooms for long stretches of time.
Hey Team Coleman! If what the Berg boys say is true (Joe the Freid-BERG and Ben the Gins-BERG) and "we look forward to Senator Coleman's return to Washington" why isn't NORM meeting with Mitch McConnell, talking over committee assignments, doing his homework on upcoming legislation? After all, if he's going to be "resuming" his duties why isn't he getting ready? Or is this a sign?
c) And Al Franken's Team? Well at the press conference afterwards:
The presser was longer than the hearing today. (0+ / 0-)
The best part was where Elias related that Hamilton and Lillehaug were debating whether the ever shrinking Coleman Universe of rejected ballots was a Black Hole or a Red Dwarf. He seemed to enjoy describing the Red dwarf as small and the least powerful. He seemed very loosey goosey in the presser while Ginsberg demeanor lacked his usual snark...although he did call Franken's discussions with MN communities on stimulus a "cute political stunt." He would know about those.
by glassbeadgame
4) Why so long?
Everyone's burning question. A late commenter in yesterday's diary may have hit on it (and if true I am immensely sorry!)
The challenge exists because (pick 1):
Coleman was leading, and he still thinks if he can cherry-pick the right ballots he can still win. Remember such men really do live in a bubble, and he may really think this.
Coleman is sucking wind financially, and if he gives up now he loses everything. He has to keep this going to get enough money to save his house, etc.
The GOP really doesn't want another Democrat in the Senate, and this is very convenient.
The judges on the EEC love reading WineRev's column, and realize that if they render a decision NOW then the column will go away...forever. They aren't going to let that happen!
by lostboyjim
If lostboyjim is right then I am a living example of "no good deed goes unpunished." Sack cloth and ashes for me--- fortunately Lent starts next Wednesday so I'll be inconspicuous among the Lutheran wine buyers.....right?
(PS. Pre-emptive joke of pennance: A few years ago we hosted fellow Lutherans from Germany. Coming from state church Germany with magnificent but empty cathedrals to free church America with stuffed churches and a crazy-quilt of denominations is a heavy shock.
We told them if they remembered 3 things they could cover about 80% of American church life:
"In America Catholics do not recognize the Lutheran sacraments.
The Lutherans do not recognize the authority of the Pope.
The Baptists do not recognize each other in the liquor store.")
Tuesday Morning Minnesota Media
Pat Doyle in the Star Tribune has the solo article and was given top billing....on page B5. The headline writer might have been a President's Day rookie replacement: "Coleman asks court to reconsider ruling on rejected ballots" since it was a) news-y and b) not slobbering over Norm.
Some nice reporting by Doyle, filling in some pieces:
On Friday, the three-judge panel excluded 12 categories of rejected absentee ballots from reconsideration. But the Coleman legal team said Monday that those banished categories would have fit about 100 ballots that were accepted last month during the recount.
While the campaign could challenge the 100 accepted ballots, it would prefer that the panel allow similar ballots to be introduced in court and counted,
This says to me, at 100 ballots in this part, the Coleman side is squirming over small potatoes, and is trying to re-inflate the universe. Lots of hot air to be sure but I don't think the Court is buying it.
Coleman's lawyers also said the judges applied a looser standard earlier last week when they accepted more than 20 rejected absentee ballots cast by voters who supported DFLer Al Franken...
These would be the 23+1 votes from the "Nauen" group and this is really bogus. The Nauen group is 61 voters. 24 of them had affidavits so detailed that were airtight that the Court ruled the ballots IN. It is the Coleman side that has waved around ballots unsigned, voters who had girlfriends sign in for voters, etc. No, no. Any "loose" standards are NOT from the Franken or Nauen side.....
General agreement in article (including Hamline Univ. law prof David Schultz) that this is mostly posturing to set up an "equal protection"/14th Amendment basis for appeal.
Marc Elias delivered an X-ray analysis:
Elias said the Coleman campaign's bid for the panel to reconsider the ruling demonstrates that the decision went against them.
More significantly, number cruncher TomTech on these boards (with rough concurrence offered from Vote for America and other stat heads) said in a comment he believed only about 650 of the Coleman ever-shrinking, red dwarf universe of ballots would ever get counted by the ECC. The Franken number folks have been right on for months calling their shots, so notice (esp. the last line):
He (Elias) called 3,500 ballots "the high water mark" for Coleman from now on during the trial. Elias said about 2,000 of the ballots involve mismatched signatures or questions about registration and predicted that the vast majority of those wouldn't survive a court test. He said it was possible that 500 to 1,000 would end up being counted.
If so.....WOW! This would mean Franken's case might need to be minimal.....or, best case scenario, UN-NEEDED! This last would come about if we get down to say, 762 ballots finally are opened and counted (Coleman's last gasp) and they DON'T break his way by at least +250 (to overcome Franken's current +249). Then it would be "Motion to Dismiss" and "hello, Senator Franken." (With an obligatory victory lap in the MN Supreme Court.)
Rachel Stassen-Berger at the St. Paul Pioneer Press has a similar write-up, although with more of Franken's meeting with the mayors. She does report what the Coleman strategy now is....as usual it is expressed as "what we would never do/don't want/no one could have predicted."...you know, Republican "Backwards Day" Speak. She quotes Ginsberg:
The court could correct those alleged problems by removing the hundreds, perhaps thousands, of now-invalid ballots from the count.
Coleman attorney Ginsberg said that's not the Republican's goal. "We are not asking to have the votes uncounted," he said. Nor, he said, is it their goal to pave the way for a federal court challenge once the state case concludes.
Not asking to have votes UN-counted? YES THEY ARE!
Pave the way fro a federal court challenge? YES THEY ARE!
Whole piece here:http://www.twincities.com/...
Garrison Keiller got off a tremendous commentary on Sunday about the national scene. You gotta love a piece that in its second line puts Ann Coulter in a wax museum! Here:http://www.startribune.com/...
So its on to 9:00amCT. For the UpTake and friends they are having a meet-up Wednesday night for staff and friends and the shy ones are planning to come early and stake out corners to text each other all night long from 6 feet away.
Hope this will hold you with the latest from yust southeast of Lake Wobegon.
Shalom.