Today, 11:00amCT is Round 2 of pre-trial motions. The UpTake will be covering it live and will have a MN attorney with election law expertise along for input in their live-stream broadcast.
Franken leads +225. Hearing today on Coleman Motion for Summary Judgment from the Election Contest Court (ECC).
And....possibly a MAJOR crack in the Coleman case (how major? This is just my opinion but if Franken is still in DC this weekend maybe he should visit a fabric shop to pick out drapes).... take a read past the fold and see what you think........
Election Contest Court (ECC): Episode X:
A) We Have a Ruling
Wednesday the ECC heard arguments from both sides on Franken's Motion to Dismiss. Taking their tempo cue from the MN Supreme Ct. (who rarely let the snow pile up on their rulings in the Recount contest) the ECC court ruled late Thursday to deny the Motion. Here at the bottom under Jan. 22:http://www.mncourts.gov/...
In their 10 page PDF the ECC asserted its jurisdiction to rule, showed they were Constitutional, and denied. Not a big surprise; to take a case of this magnitude and public interest and throw it out would just be TERRIBLE for ratings here on DailyKos! So they denied Franken's attempt to end this with a bang. Onward.
But I have to say on Friday Morning with the MN Media, THIS is the headline story, both Lamestream and New Media: "Franken Loses Ruling." Well yeah, but I think everyone has closed down their laptop too early.....this was a long shot all along for Franken (although nothing like today's sidesplitter from the Coleman side) and so what? There's bigger news further down but no one's reacting to it. Maybe the WineRev has been left holding the cork here....... but maybe.........
B) We Have Filings and Motions.
If you went to the link in A) you had a bit of scrolling to do. Why? Wednesday the 21st all eyes were on the 1st public appearance of the ECC and 2 new lawyers for each side. BUT lots of other lawyers have been furiously busy for both sides as well and they cranked out 21 (!) various motions for the ECC to deal with.
(Or maybe there was some terrible confusion and they thought the day on the calendar meant they needed to turn in 21 things......)
Coleman Motions:
If you read through just the titles "contestant" means Coleman/ Coleman's side. They made motions to:
>answer Franken's counterclaims ("AHA! The Monday homework, turned in, good, but 2 days late. Normie, I'm going to have to take off points for that....")
>law & precedents against the (Franken) Motion to Dismiss (helping out the court here; what all good lawyers do)
>motion for an order for counties/cities to turn in ALL their absentee ballots to the ECC (here's that move Knaak & Trimble mentioned over the weekend to gather all 12000 rejected absentee ballots from across the state)
>motion for hearing summary judgments on parts of Norm's case ("We think these are our best shots, even if we don't get the whole snowball")
>a set of motions and affidavits and notice of a hearing for the Coleman Motion for Summary Judgment (today's action; see more below in C) including the "read the telephone book during a filibuster" motion (Motion to Exceed Page Limitations)
Franken Motions:
Now while Al is in DC rubbing elbows with about 98 soon-to-be "distinguished colleagues" the Franken team ain't letting the slush build up and freeze in their wheel wells either.
The "contestee" (Franken) on Wednesday filed:
>Motion to Strike Unsupported claims, with the legal "whereas-es" and "becauses" ("Take these empty beer bottles off the table and here's why")
>5 motions, memorandums and affidavits (including a 76 pager!) and a hearing notice in support of Franken's motions of a partial summary judgment HIS way ("2 can play "summary judgment", Norm")
>motion arguing AGAINST bringing the 12,000 rejected absentees to the ECC (as in, "the local officials have already done this work, twice. Leave them alone"....in slightly longer sentences and backed up with citations & such.)
And some other stuff (which probably sounds cooler in Latin/legalese) was filed, noted and memorandumized too....
AND then came Thursday!
A bit quieter but only a bit. The ECC court issued a couple orders regarding the voters who are looking to have their absentee ballots counted (including I believe the group of 64 the MN Supreme Ct. sent over to them.)
The Court also took in a Coleman petition for a list of Inspectors (see below 2).
The ECC held a mid-day hearing Thursday on the Coleman motion to drag 11,000 (Down from 12,000, but the same batch) rejected absentee ballots to the ECC court. Langdon & Trimble for C: "We bring everything to you and the Minnesota electorate depends on you for that purified result." (Trimble really said that: "purifed result." Sounds like he's asking for a restoration of virginity or something....)
Elias & Lillehaug (!) for F: Specific ballots, OK. 11,000? Major burden on local officials.
Langdon: No, its not a burden.
Judge Reilly of the ECC to Langdon: "Have you worked in municipal government?" (Pretty sharply asked, acc. to those there.)
Ooohhhh, pretty...crisp there, Judge Reilly!
AHA! MAJOR Update below in 3) on this matter.
How to Do a Trial
The court also issued an Order to Ensure Proceedings will be Conducted in an Orderly Manner Consistent with Minnesota Law and Court Rules, which I suppose is kind of standard but also kind of not. This sort of proceeding, especially at a statewide level for a federal office, and one that has reached an "Election Contest Court" stage is a rather rare bird. So the ECC showed THEY can do homework and issued 75 pages of rules and regs, so the lawyers will definitely have something to do on the weekend.
Not many lawyers have actually done a trial like this and not many judges have presided at one. There are 3 judges (like in appeals cases) but they are conducting a real trial (OK civil, not criminal, but still...) with all the stuff we know is supposed to happen at a trial: "Do you swear to tell...?". "On the night in question......""I show you a lizard people ballot from Beltrami County....""Objection!" "Sustained" and all that.
So such an order is really a good idea. It is all together meet, right and salutary that the judges issue such an order and lay out the boundaries and rules so the attorneys know what they are doing and so the Court can call fouls and "Out of bounds." ("Half the courtroom shall be covered in 1/2" ice and any attorney over there shall wear or change into NHL regulation gear including protective cup at the lunch break halftime......The other half the courtroom will have 4 tiers of bleacher seats (including one aluminum one so McIntee can use it as massive antenna and consume all bandwidth in the room to broadcast to the UpTAke) overlooking the regulation height NCAA net and hardwood floor. Judges Marben & Reilly will alternate dropping the puck and throwing in the volleyball. Presiding Judge Hayden will spend her entire time under the hood of the replay camera secretly watching the UpTake live-streaming.......")
So for those of you with OCD tendencies there's a WHOLE lot of reading to be done at the link. People around here love it when someone comments, "You know I just read on page 35 of the Franken Motion and I think...." It REALLY helps the rest of us so bless you for your efforts.
C)We Have a Hearing
Coming up TODAY at 11:00amCT. The Uptake (link: will give it a shot, and likely WCCO, KARE11 and CNN as well. Subject: the Coleman Motion for Summary Judgment. In a mirror image of the Wednesday hearing on the Franken Motion to Dismiss, this is the Coleman effort to end the whole thing in one stroke.
We will likely see a repeat of the procedure but with reversed roles: the Coleman attorney (Langdon again? Another new face? Or one of the knowns (Knaak, Trimble, Magnuson)? Or the semi-new, semi-known Joe Friedberg?) will make an opening argument with the 3 judge panel able to interrupt with questions at any point. (This will be more like an appeals situation than a trial; trial stuff opens Monday.) There is a time limit.
Then the Franken attorney (Burman again? He did a nice job Wednesday but there are a number of good alternatives at this table) will have a set amount of time to argue down what everyone just heard ("because of this, this and that...."). Again the judges get to interject ("Have you thought about this? What about that?").
Then the Coleman side gets one more turn at bat in a rather shorter closing. Wednesday's hearing took about 70 minutes. This one may well be about the same length.
Afterwards one of 3 things happen. The ECC judges:
a) stand and weep in awe of the Coleman case and ask for the privilege and honor to find in favor of Norm on all points, declare him the winner, adjourn, wring his hand and wish him "God's speed Senator!" and "Good luck, Bart!"(patting the Gucci saddlebags)
b) fling themselves onto the high bench and laugh convulsively while EMTs come forward to administer oxygen and veterinarian-sized horse shots of ANTI-nitrous oxide (laughing gas antidote). A brief recess is called while certified physical therapists enter to give soothing rib massages to all 3 jurists. After everyone reassembles the ECC denies motion for summary judgment. All 3 judges then strain to heft and swing Helm (Hjelm?) Hammerhand's Gavel with such force the high bench shatters and the sound causes a 13 mile rift in the Lake Superior ice at Duluth.
c) probably decline to rule immediately, take it under advisement, and move to the pre-trial scheduling meeting they previously put on the Friday calendar. Then sometime Saturday the ruling for denial is issued, WineRev has source material for Sunday's diary, and everyone waits for Monday's trial opening.
2) Coleman and the Inspectors
As part of its "Now Lets Count every Vote for ME" strategy, the Coleman team wants to have a look at all 12000 absentee ballots that were rejected statewide. Or maybe its 5000....or 7000, they're just not sure yet. Anyway this is where the famous 654 absentee Coleman cherry-picked ballots lie and even the lint brains running the Coleman legal effort have tumbled onto the fact that no court is going to admit only their 654 cherries into the recount. So now they have gone over to the other side of the horse and want the ECC (or somebody) to look at all 12,000. (Martin Luther once observed a drunk who has just fallen off a horse on the left side is the man who, having remounted, is the most likeliest in town to now fall off the right side of the horse.)So this is why their request that all counties and municipalities deposit their 12,000 absentee with the ECC.
But if the ECC decides they don't want to do this the Colemaniks are willing to help the court in another way: the Coleman team has a list of "inspectors" (given the Coleman tact one of them is probably named Javert or Clouseau) they would like to fan out across 86 precincts (out of 4131 in the state) to "examine" these unopened/uncounted absentee ballots (that were rejected for legal reasons by election officials following the law.) Although they didn't say so, surely these 86 precincts were coincidentally chosen utterly at random starting in Michele Bachmann's basement.
An UpTake blogger who is an atty. empties a bathtub of water on this move (and outdoors in January in MN this could be a serious attempt to injure!)
[Comment From Chris II]
Coleman wants the election contest "inspectors" to inspect voter rolls and rejected absentee ballots. But the statute says the court can appoint inspectors to "recanvass the votes cast for the parties to the contest or the question in issue in accordance with the rules for counting ballots in the Minnesota Election Law." You can't recanvass rejected absentee ballots, and voter rolls are not ballots. The inspectors are supposed to merely conduct a judicial recount. Coleman wants them to do a lot more than that--he wants them to conduct discovery for him.
I agree. This is more of the Coleman ice fishing expedition now aimed at one of 86 lakes near you. The ECC accepted the list but I think they'll either ignore it or throw it out when they deny Coleman's effort to look at all 12,000 rejected absentee ballots.
3) ECC On the Move!
Well THAT didn't take long! Team Coleman filed that motion to have the counties and municipalities send in their (total 12,000) absentee ballots to the ECC. That was Wednesday. Now comes word Thursday evening about 6:45: Motion DENIED. Link at TheUptake.com at the 6:47 time mark. (Sorry. Don't know how to link to straight PDF's)
Well OK. If the WineRev can survive HotAir and Powerline he can survive the ECC. (Reads entire 2 page PDF)
"We the ECC heard this argued on Wednesday.
Contestants Notice of Motion and Motion for Order Directing Secretary of State to Deposit Original Documents with the Court Denied.
Contestants' Notice of Motion and Motion for Order Directing Counties and Municipalities
Possessing Original Rejected Absentee Ballots To Deposit Originals with the Court Denied.
Signed, The ECC"
Thats it. No votes. No dissents. No comments. No review of why we the ECC are authorized to do this. Just NO. (Well they'd never get past the Minimum Diary Reqs. here on DailyKos with THAT attitude!)
Ahhhhh,..... ya know, its just me, (like nobody in the Minnesota media on Friday morning is saying this but I'm going out on a limb here. Its a big thick branch if you'd care to join me, or you can just gather by the trunk waiting for the cracking sound.)
BUT....... I don't think this is a good sign for Coleman (only for John McCain.) I also think this means Coleman Inspector Agents are going to get bounced before they can even be fitted for trench coats and issued their magnifying glasses.
The ECC is NOT going there..... and (praying to all the holies) this could mean a fast trial and decision. What will Trimble, Knaak and Co. talk about? They HAVE NO CASE with enough votes in it to overtake the Franken lead. Team Franken might reinstate their Motion to Dismiss or for Summary Judgment right after opening arguments on Monday. Maybe?
There will be some more writhing on the hook but in my book folks......this is serious. This is BIG. This ruling could be the equivalent of Sherman's telegram, "Atlanta is ours, and fairly won." (Not quite over but just mopping up to do.)
4) Things Norm
Just a quick wrap: on Thursday Norm: ....got a day job with the Republican Jewish Coalition; Norm will be advising (but not lobbying) on matters of dress and deportment......put up a new video at his website that repeats all the usual shibboleths: "artificial lead" "double count" and "I can win".....said in an interview he thinks 08 having been a Democratic year he would likely have lost to ANY real MN Democrat, but because AL....
Busy day for Norm. Maybe he's jealous of the attention his lawyers are getting.......
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I hope this makes some sense folks but Thursday the news spread out like an espresso machine leaking onto the hockey rink and no one could find the shut off valve. Have at it with thoughts & comments and enjoy the show at 11:00. (I'll try to catch up with you from the shop: internet is good to go again. Apparently our branch store caught a computer virus which tech support moved to quash -- so granted----- and all is technically well again.)
OK that is some of the latest news, and not all of it is going to STAY latest today, from yust southeast of Lake Wobegon.
Shalom. (For those of us at work, if you're tuned in at 11:00am CT give us updates in the comments, hey?) Thanks! http://www.theuptake.com/<a</p>