Signs continue to build that the Coleman side of the Election Contest Court (ECC) case is indeed reaching an end, like waiting for winter to end in Brainerd (you know, May 23rd?). AND the Court continues to do its homework and issue orders steadily. A couple biggies came down late yesterday, denying (the word ALWAYS used with Motions from Coleman) a class action suit certification and a request for a Temporary Restraining Order.
Franken leads +249 (+18 to +24 maybe close; 12 more votes ordered counted but not clear how these 12 will break.)
MN Supreme Court: No Decision on the Franken request for a Certificate of Election. (Day 21 since hearing)
The Big E over at the MNPRogressive Project has a nice "where we stand in the trial" Q&A here for those needing just a snapshot:
http://www.mnprogressiveproject.com/...
For another entry in this blessed series of endless reports, c'mon below the Orange fold.....
1) Election Contest Court--Episode XXVII
The Coleman team is nearing the finish of their case (in more ways than one!) They called Gary Poser to the stand, the state elections director under Sec. of State Mark Ritchie. (Poser was the gentleman who got to read off all those "Frankens", not so many "Colemans" some "Barkleys" and 1 or 2 "Niemackls" back on Jan . 3 when the 933 "pile 5" ballots were opened and counted.) Friedberg brought out over 100 rejected absentee ballots that they believe should not have been rejected. Poser was stubborn in clinging to the law and holding they had been properly, legally rejected.
He had great help from David Lillehaug from the Franken table, both via objections and on cross-examination. Better than 80 of the 100 were pretty clearly knocked out of the game.
The bloggers thought so too:
[Comment From expat Minnesotan in NY]
I think Lillehaug is just trying to drive home the point that appropriate standards were applied quite uniformly. The equal protection argument (weak as it is already) is being demolished.
If you could hum "Sweet Georgia Brown" whle reading this:
[Comment From headlight]
Lillehaug -- this is just cruel. Knocking Coleman voter after Coleman voter off the list. I bet Norm just wants the pain to stop. Franken's legal team against Coleman's looks like when I saw the Globetrotters against the Washington Generals in my high school gym. I think Marc Elias is the Meadowlark Lemon of the team, while Lillehaug is Curly Neal.
(For those of you too young to know, Lemon was the prankster and Neal was one in a long line of unbelievably gifted, "how did he do THAT?", amazing ball dribblers the Globetrotters have had.)
In 1984 Ronald Reagan looked bad in the first presidential debate against Walter Mondale (who was prepped for only that debate by a super sharp, hard-talking, early 30s aide by the name of David Lillehaug!) He recovered in the 2nd due in part to a genuinely funny crack while looking over at the silver-haired Mondale (and still being several years his senior), "I am not going to take advantage of my opponent's youth and inexperience."
In a DELIGHTFUL reverse pivot off of that in this trial:
[Comment From STepper]
I've only been practicing law for 37 years, so I may not understand what Ginsburg and Coleman's other lawyers are doing because of my lack of experience. But it sure looks like a total waste of time to me.
2)Lazy/ Cheap student gets ballot smacked.
You know, there are still certain things in life that require HARD COPY: certain legal documents, car loans, WineRev's great novel, AND Minnesota absentee ballots. You can do a lot online but the state of MN requires you to print out and sign your absentee.
Printer out of paper? Jump drive to a friend's printer! E-mail to iPhone to Mr. Coffee to dot-matrix ditto machine! You're in COLLEGE man, you're smart. youcan think of something! Of course you can..... unless you are this guy (as reported by Jay Weiner at the MinnPost.)
On Feb. 13, a North Dakota State University student, who voted absentee for Coleman, testified. He initialed his absentee ballot application online with a computer mouse, rather than print it out and copy it so he could sign it in full.
The Coleman side wanted his ballot accepted. The Franken campaign said that computer initialing wasn’t valid.
Then, under questioning, Peter DeMuth, who is from Plymouth, said he didn’t copy the application and sign it because it cost money to do so.
Well -- and here’s the Perry Mason moment -- Lillehaug Tuesday, while questioning (state election director Gary) Poser, produced an affidavit showing that, in fact, NDSU students get 500 free copies per semester. And, thereafter, it’s 3 cents per additional page.
When Lillehaug produced that, Coleman lawyer Joe Friedberg threw up his hands and didn’t object.
The three judges, who have not smiled a whole bunch the past five weeks, all broke out in broad, teeth-baring grins.
3) Final Pieces? Minneapolis 133
On Tuesday and no doubt continuing today and longer, Team Coleman moved to the Minneapolis "133" part of their case. This is that precinct where 133 voters came in and voted IN PERSON (among over 2000+). (We are taking a well deserved break from absentee ballots to look at PRESENTEE voters.) In the Recount the envelope containing 133 ballots went missing (and remains so to this day.) We know they signed in to vote. We know the voting machines recorded their votes. So we have strong evidence they were there. But since the ballots are gone Team Coleman is pushing to have all 133 votes ousted. (Some were Coleman & Barkley, et. al. but they totaled NET +46 for Franken.)
The ECC agreed to hear this (earlier turning down part of a Franken Motion for summary judgment to settle this that way) but already cited precedents in law from 1913 and 1915. (WOW! The judges do homework the way Team Franken does homework! Now in school didn't the good homework kids usually hang out together, date each other, and stay away from the bad homework kids? Hmmmmmm......) Those precedents in law seem to favor keeping these votes IN (and they currently are IN) but they want to hear facts argued. (Which means the Coleman side just fell through the courtroom ice fishing hole...again. They seem allergic to facts, clumsy, like trying to feel the texture of velvet while wearing hockey gloves.)
I'm confident Franken will prevail on this and the 133 stay in BUT its going to be an ordeal of pushy questions and embarrassment for Cindy Reichert, the Minneapolis city elections director. She'll be on the witness stand, called by the Coleman team, trying to explain what happened. The Franken team will support her with objections and whenever they get to cross-examination. But even on cross from a friendlier Lillehaug, Hamilton or Elias she'll still be on the wrong end of Desi Arnaz's accusatory, "Lucy? You got some 'splainin' to do!"
Top couple/ three on this page:http://www.mncourts.gov/...
4) COURT ORDERS: A) Denying request for Certification of Class Action.
One of the groups of voters in ECC and NOT with Franken or Coleman is a group represented by attorney Patterson. If I'm not mistaken (and I will correct if pointed out) these are a different group from the "Nauen" group that has had some of its voters' ballots admitted to the Ready to Count batch.
Well way back when the ECC was invented (mid January) the Coleman side was still trying to get all 10962 (the "11,000") rejected absentee ballots into their universe to be considered by the court. Using their Super Colossal Anti-boson Gamma Ray generator) the ECC has whacked that number down (10962 to 4797 to 4623 to 3500 to 3300 to about 2000-2500-- and after Tuesday's action Franken Attorney Marc Elias assessed the damage done in court and guessed the Coleman universe was possibly under 2000) so Team Coleman has been trying other approaches.
One angle has been to lash all the votes, presents and Christmas trimmings of Whoville into a Grinch-sized heap and load the 11,000 onto, say, the Patterson group sled as a class action suit. The Patterson (and Franken) people have fought this and Tuesday the court ruled (3-0 again; by the ghost of Lou Groza, MAN, are they good on field goals!): DENIED.
If you read through the Order the Court once again sticks VERY close to MN law and knocks down Coleman's effort by running down the 4-part test needed to get to a class action certification. The 4 are:
Numerosity (which Coleman passed; 11000 voters and their ballots have numbers.)
Commonality (FAIL)
Typicality (FAIL)
Adequate Representation of Class (FAIL)
While it gets a little technical, (like for #2, those in a "class" have to have something in common, that is, common to all of them and caused by the same thing) this UpTake blogger NAILS Team Coleman's strategic schizophrenia
[Comment From nikip5555]
Did anyone else get a kick out the way Coleman's trial proceedings have undermined his attempt for class certification? The court points out that a class must have "common questions of fact," but the trial has made it quite clear that every rejected absentee ballot is unique. Ergo, no class.
And the ECC ITSELF, while writing very careful, rather dry, prose (a crisp, Honig Reserve Sauvignon Blanc ($22) sort of dry) and showing every gram of judicial tact and fairness, snapped this 1 meter icicle off the eaves toward Norm (who I think voted in person, not absentee; but even IF absentee his vote counted) while denying "typicality"
"Coleman cannot represent the class of rejected absentee ballots that he seeks to have certified because he is not a member of that class."
B) Order partially granting and partially denying Contestee (Franken). A long, detailed order on various groups of ballots Franken is seeking to have included (in the UF, Universe de Franken; we are avoiding the use of the abbreviation for Franken Universe because a) copyright infringement with Fordham University and b) I don't like the abbv. term's more...earthy.... meaning except under extreme stresses.)
One interesting group gaining ground are 35 absentee ballots from Duluth/ St. Louis county that are part of the 393-418 "pile 5" ballots that were NOT counted Jan. 3. These 35 were rejected because the date the voter signed the absentee ballot did not match the DATE the witness to the ballot signed. MN law is silent on the issue of dates or their matching. The Court said this DATE MISMATCH is NOT a reason (one of the 4) for rejecting an absentee ballot. (And Duluth went heavily for Franken.)
The ECC did NOT order these 35 added to other ballots already in the "Ready to Count" pile (slowly piling up in the Sec. of State's office) for the good and sound reason they did not know if a) the voter was dead on election day, b) if the ballots meet the 4 reasons for rejecting. (Implication is REALLY strong if they do, they will be in the Ready to Count pile. (YAY! for counting legal votes.))
C) Denying Request for Temporary Restraining Order (TRO)
The ECC ruled as expected on last Friday's Motion from the Coleman camp for a Temporary Restraining Order. This order would have kept the Sec. of State's office from redacting (editing) information on 933 ballots in the office that connect them with the envelopes they came in and the reason why the ballot was initially rejected. This is BIG because if granted it might allow the Coleman side to argue certain ballots the court has already excluded are EXACTLY like certain ballots in the 933 that are INCLUDED in the count. So it would open the door to UN-counting ballots already included in the state certified total.
The ECC ruled: DENIED, 3-0. ("Groza with that classic straight-ahead kicking style (not like those sidewinding soccer-style booters like the kid, Pete Gogolak) is good from 44 yards for another 3!")
The Court worked through every angle in their denial. They said Coleman MAY have a couple MAYBES but nothing solid. They note the request fails "on likely to prevail on merits" but then are very careful and quick to add this failure is ONLY about this request for a TRO and says NOTHING about the merits of their case as a whole. (Harumph! C'mon ECC! If Kossacks and upTakers can't rampage about the "failing on merits" what are we gonna talk about today? Where's your sense of "feeding the Internet beast"?)
Oh, and after the whole Lillehaug tour de force on this Friday (where he asked in writing for sanctions against the Coelman lawyers)? Sanctions did not appear in the Denial. It would have been pretty drastic.... might have set up grounds for an appeal on the basis of judicial bias.....but HOLY SMOKE would it have been GREAT to see Ben the Ginz led away by the bailiff for three days in the brig!
Oh well..... but damn it, I'm glad they tried it. SOMEBODY's got to throw a flag on these Yukon Jack Yaks!
Wednesday Morning Minnesota Media
You KNOW Norm Coleman had a bad day in court, either with witnesses or court orders when a) Doyle and Duchschere at the Star Tribune write a rather somber but balanced story on the proceedings, b) the Star Tribune (in the tank/ bought off/owned/ stupid/biased/ lackey of a: choose your favorite progressive epithet) headline writer can only get off a topper of: "Setbacks for Coleman Grow at Trial" and c) D&D close their article running down the Nauen ballots, the 12 the court has put on the Ready to Count pile, and noting Franken's lead is up to +261!
Yumpin' yimminie uffda, Norm! If YOU of all people are losing the Star Tribune, you might want to look into, say, lobbying for Jewish Republicans as a job. I've heard the job reqs. are big on sitting in courtrooms, is that right?......... WHEW!
For once, fun reading: http://www.startribune.com/...
For the Star Trib, this could be a trend! Here's MNProgressive's Big E with another not-so-Norm headline from the Mpls daily:
http://www.mnprogressiveproject.com/...
Rachel Stassen-Berger at the Pioneer Press shows her appreciation for black & white TV by invoking Perry Mason in describing Lillehaug's trampling of the NDSU student's story and continues writing well. St. Paul media still leading easily, but Mpls. showing signs of life if D&D can put a few in a row together.
http://www.twincities.com/...
If you think Minn Post is only Jay Weiner and his fine work on the trial, well here's a fun little story from Chuck Haga (heir to a men's slacks fortune until his name was unfortunately mangled by a chainsaw?) on the guy from Warroad in Rosseau County who committed actual, criminal voter fraud by voting for Norm:
http://www.minnpost.com/...
If you like reading stories and their comments (and you wouldn't be here if you didn't) of all things the blind pig/crummy site of "Minnesota Democrats Exposed" finds an acorn/ACORN(!). The Pioneer Press editorial board has apparently held a prisoner exchange with the Star Trib and came out with a "lets have a do-over" editorial a couple days ago. MDE posted it since is a piece of vaguely not-bad-news-for-Norm. There are 74 comments in thread and folks, some of the Orange Brigade of Progressives is fighting the good fight there, exchanging jab for jab, punch for punch, parry & riposte for thrust. Kind of like what happens here but done in a different key:
http://www.minnesotademocratsexposed...
OK I hope this will hold you until 9:00amCT when all of your browsers will of course be pointing toward the UpTake. (Part of the stimulus package has been announced in MN that could have been a LITTLE better focused:)
theuptake: Duluth Tribune & Pioneer Press receive $238k to train workers on how to better use the Net. Thats more than 2008 UpTake budget.
Thats the latest from yust southeast of Lake Wobegon.
Shalom.