Hoo boy did we have lawyers on Friday! Almost every lawyer you've seen on these threads tried to publicly earn their retainers (so they don't end up with dentures like Norm's? "No. No! that's WEAR retainers, not earn them." --OK Thanks)
Kossack Attorney underwhelm has a nice diary up assessing the Coleman days in court this week (hint: not a good week for horse dentures):
http://www.dailykos.com/...
Capsule: Franken leads +225. Coleman keeps losing pre-trial motions that would expand and distract the work of the Election Contest Court (ECC) Formal civil trial in front of this three judge panel begins Monday, 1:00pmCT and will be aired live. Length: WineRev predicts: less than 2 weeks; 3-0 Norm loses.
Appeals? Straight to MN Supreme Ct. WineRev predicts: Supremes take it immediately, hear it, rule 5-0 in less than 48 hours: NO, Norm.
For those who like their MN-Sen recount news flavored with details and lunatic ravings (billboard seen in Twin Cities: "Dear MN, ketchup is not a spice. Signed, New Orleans") grab the salsa and come below the fold......
1) Election Contest Court-- Episode XI
Voters First.....
The ECC had a 2 parter Friday. At 11:00am they had a hearing for about 20 minutes, with Coleman lawyer Langdon (who we saw Wednesday) sparring with Franken side's Kevin Hamilton. (Aha....more on this tussle in the Saturday morning media recap at the bottom.)
There was also a bit of input from the "Nauen intervenors" and the "Kennedy intervenors." Unrelated to "revenooers" or "regulators" or even the "nullifiers" (and their snappy blue cockades) of American history, these "intervenors" are the lawyers' names on behalf of certain voters (typically absentee) who have been notified their vote had been rejected/not counted and are now "taking it to court." By law the ECC is THE court for such voters and situations.
IF I'm right in my guess-- and it is a guess, subject to correction from wiser heads -- the "Nauen" group are the 64 voters who the Franken team helped file their move last week with the Supreme Ct. (who made a nifty pass between the skates to slide their (puck)case over to the ECC.) The "Kennedy" group I think are 7 more voters making the same case (I love using cliches in their originating contexts, don't you?), but its unclear if these folks are being helped by Franken, Coleman, Barkley or are skating on their own hook, funds and hockey sticks.
And despite the example of 2 wrongs don't make a right, these 64 and 7 "Ifs" are an "I think" part of the 392 folks whose absentee ballots were wrongly rejected by their counties, then reinstated, but not yet counted because either the Coleman or Franken camp used their "veto" over admitting them to the count.
AND, just to make the lawyers wait in the lobby just a moment longer, these 392 (maybe 393?) improperly rejected absentee ballots that haven't been counted yet? Yeah, the ones left out in the cold (a terrible thing to do in MN in December and January) by the MN Supreme Court ruling of 12/18? According to some intelligent commentary from yesterday's diary ALL of these 392 MAY be heading to the ballot box! (If so it is no more than justice; NO VOTER should be denied because of "clerical error" or "broken machine" or other crap like that.)
Note this sequence (h/t to those commenting, esp. underwhelm, a MN atty.! and the fine use of "confoozle". Nice job!:)
Power to the Peeps and all, but (1+ / 0-)
my concern is about Dentures perverting the system. I don't think many people think the MN SC's decision to give the campaigns veto power over the fifth-pile votes was sensible - the ruling on that matter was spineless, imo.
That said, following on from that decision, it's concerning if the court reverse itself under pressure from voters who (I think it's pretty clear) are being prodded into action by the campaigns.
It plays right into Coleman's hands to start second guessing the fifth pile. Now, if they want to say, our bad, count all the fifth pile votes previously rejected by Coleman or Franken, then I could live with that (especially since they wouldn't break sufficiently for Coleman to make up his 225 vote deficit).
by HobbyWizard on Fri Jan 23, 2009 at 09:54:24 AM CST
not a reversal (4+ / 0-)
The decision to count improperly-rejected absentee ballots would not be a reversal. The S. Ct. specifically said that the erroneously-rejected ballots could not be counted unless (1) all parties agreed or (2) an election contest determined they should be. Some got in under condition 1, and the court specfically contemplated condition 2.
by underwhelm on Fri Jan 23, 2009 at 10:14:53 AM CST
Okay, thank you for clarifying. (2+ / 0-)
I still think it was a dumb way to do it because it undermines the authority of the canvassing boards.
My understanding is the campaigns did not have to offer a reason for excluding fifth-pile ballots. I hope I'm wrong about that, too, because otherwise it seems fairly obvious the courts, in theory, allowed the campaigns to exclude ballots for the vote contained within, rather than for cause.
by HobbyWizard on Fri Jan 23, 2009 at 10:31:39 AM CST
It was a little bit the other way around. (3+ / 0-)
The court basically said that no one but the ECC during a contest could order contested, rejected absentee ballots counted. So the only ones that could be counted were any that were completely uncontested. It's only because Coleman was then behind in the count by 20 or 50 votes that his side agreed to allow any of the rejected absentee ballots to be counted at all. And that just pushed him further behind.
by Ken in Tex on Fri Jan 23, 2009 at 10:38:58 AM CST
Gotcha. (3+ / 0-)
I've been confoozled about the finer points of this, I think, in spite of Uptake, WineRev, et. al's best efforts. Thanks for the correction.
by HobbyWizard on Fri Jan 23, 2009 at 10:41:50 AM CST
Cool, (4+ / 0-)
So you see, that the ECC now counting those very same ballots is not a disagreement or an overruling of the supreme court's previous decision. In fact, the previous ruling sort of has already given the ECC a tacit OK to authorize counting any rejected absentee ballots that they deem to have been rejected improperly.
by Ken in Tex on Fri Jan 23, 2009 at 10:48:53 AM CST
SOOOoooooo...with a bit of luck, as the trial gets going next week the ECC could decide on these 392 and call up Ritchie and Poser over at the Sec. of State's Office and have them hold another "Opening Party" with their stylish chant of "Franken, Franken, Coleman, Franken, Coleman..." (in tango rhythm: slow, slow, quick, quick, slow, and in those proportions; "Jalousie" playing in the background, stirring the Argentinian soul of the WineRev.....boy, that is strong salsa and Malbec....)
2)....OK, Let the Lawyers IN
At noon the ECC reconvened to hear the Coleman Motion for Summary Judgment. ("We are so great and our case is so good" just invoke the T-Ball/squirt hockey 10 run/goal mercy rule in our favor!) As those filing the motion Coleman side got to open and also (after a slapshot for Franken's team) got to close. (If you're watching the video replay on the UpTake, Team Coleman is in bright red uniforms, with lots of jersey names ending in "ov" and "off" and "enko". The inside tags say "Moscow Hockey Gear". Across the front: CCCP ("Certified Coleman Court Pretenders")
James Langdon was center ice for the opening shift for Team Coleman. He was last seen in Wednesday's hearing thrashing around trying to convince the ECC NOT to throw out the entire case. (We're still here, so it was a partial victory.)
Langdon was arguing for including a LOT more LEGALLY rejected absentee ballots (piles 1-4, and oddly quiet on pile 5- gee I wonder why), anywhere from 4000 to 11000 (which would be ALL of them.) He didn't exactly say which ballots should thereby be counted for Coleman but implied mightily there would likely be probably enough to carry Norm over the top and (in a fast-talking finish) why not have the ECC just accept this list of ice-crystal assumptions on a sunny day and just rule in their favor TODAY (before everything melts.....like their case.)
The hockey/legal fans live blogging over the UpTake did a wonderful job of summarizing how Mr. Langdon did.
What is Coleman's argument? That they should redo the whole recount and let him pick the ballots that should be counted?
Sounds like Florida 2000 playbook to me.
Coleman's lawyer wants to ignore the statutes that put them into piles 1-4
Laws are for little people.
Does anyone else feel like Langdon just keeps talking and talking, going around in circles, rather than presenting evidence, just filling time?
Yes they did.
And even the ECC judges were...... (ahem) straining to keep their judicial balance:
Way to contradict yourself in the same sentence and yeah to the judge for calling him on it
This must have impressed:
"You know it when you see it"?!?! Is this a recount or porn?
Coleman chief lawyer Tony Trimble skated onto the ice, met by the usual chorus of boos and catcalls that any team's "enforcer" gets when its a road game. So naturally when "the enforcer" became the "enforcee" (to use the legal language; WineRev buffs nails) because of some body-checks to his logic and argument, the fans were cheering hard:
Gee - is Trimble arguing that you can "fix" a recount just by tossing a non-favorable precinct envelope into the trash? Sounds like it.
Trimble's arguments are like an episode of "Lawyers Gone Wild." I can't believe some of this stuff!
oh - We're sure there's evidence there, we just haven't found it! WMDs anyone?
Basically, Trimble is still arguing that he has nothing yet. Is that enough to keep them from summary judgment?
And let me tell you, when the judges went down into the corners after the puck to mix it up along the boards with Trimble, the fans were rockin' at the ECC team's gritty play!
[Comment From rincewind]
OOOOH! "Why did you wait till yesterday?"(Judge Reilly) LOL
1:32 [Comment From Dennis]
that can't be good
Is it bad when the judge is making fun of you?
That lady judge (Denise Reilly) seems very skeptical of Trimble's games.
at this point.. i would adjust my black robe... grab the gavel.. pound it ... case dismissed
And during the period break while the Zamboni was out laying down some fresh ice, some mid-game analysis:
A lot of unanswered but specious allegations from Trimble. Voters voted both absentee and in person? Large number of absentee ballots, disparate rejection rates? Yes, Minnesota law expressly allows you to vote on election day despite casting an absentee ballot. That's why so many were rejected, and why it might happen more in one place than another. Not an indication of disparate treatment at all.
Trimble's argument on Mpls and Maplewood is weak in one significant respect: no evidence. He complains that Franken's evidence is double hearsay, but he has even less--he has zero--and you need more than zero plus speculation to create a material issue of disputed fact.
In the Team Blue/Team Franken uniforms (jersey tags st the collar say, "Lake Placid Hockey Gear, 1980"; lettered across the front: USA: "Up Set Ahead") the stars yesterday had to be Marc Elias and, in a very smooth public appearance, (legal) team captain David Lillehaug. (GREAT impressions of Neal Broten and Mike Eruzione!)
Elias was methodical and historical, quoting PRIOR team Coleman positions on absentee ballots and pinning them to the boards by pointing out how now they were trying to skate down the other side of the ice. These Minnesota hockey/legal fans know good skating and hard-grinding when they see it:
Comment From Dennis]
He is very organized. Good hire.
12:35 [Comment From mikeinaz]
bulldog... maybe because he has to prevent Coleman from muddying the waters every day...
Over a couple Molson Ice beers in the stands fans were talking about the Coleman strategy of claiming something "A" a few weeks ago, and now whining they are hampered or hindered because of "A". Unlike hockey in court you have to stick with one line and can't claim, say, "My client was found with a chrome & pearl Derringer pistol in her purse, not a blue steel .38 like the murder weapon," and then, after ballistics says the killing bullet was from a Derringer and 8 witnesses have testified to a Derringer you can't move to strike "My client was found with a Derringer.." (fancy legal term: estoppel)
[Comment From Mark Bannick]
n. Law A bar preventing one from making an allegation or a denial that contradicts what one has previously stated as the truth.
12:46 [Comment From 51st WardPrecinctCaptain]
@ Mark Bannick: what you describe is what we in Chicago deride with the rhetorical query, "Who you crappin'?!"
And they LIKED Elias' stick work and scrapping behind the net:
[Comment From Fisch Fry]
Wow. Elias just blew up this motion (for Summary Judgment). Couldn't be argued more effectively. If "the universe isn't done", then there are material facts in dispute. A motion for summary judgment is so ludicrous that it might be sanctionable. Just because many litigants do file summary judgment motions doesn't make it appropriate every time. This is just an incredible waste of the court's time. .
Comment From Chris II]
Tough to beat Elias's argument that equal protection does not require when one official makes a single error that the error be reproduced statewide. It would throw all elections into chaos.
Lillehaug was deadly from the slot, sniping at the goalie every shift:
"Contestants (Coleman) claimed unqualified and ineligible voters voted for Franken. We asked (in the "interrogatories"; nosy, pushy questions each side gets to ask the other about in writing before a trial that each side has to answer in writing) 'Who are these voters?'"In what precincts did they cast unqualified votes.'
They said, "We don't know."
"They claimed some voters voted more than once. We asked who? and where? They said they didn't know." They have no evidence."
Presiding Judge Hayden (I think it was her; voice sounded a bit different from Reilly's) broke in with something along the lines of "If you had gotten answers we might have to assign those voters public attorneys for their trial here on voter fraud charges." (Lillehaug smiled back and suggested Joe Freidberg from the Coleman table!)
Lillehaug was a scoring machine and he was hitting the corners of the net effortlessly. Looked like Mario Lemieux on a power play undressing the New York Rangers entire squad.....he was that good!
3) The ECC has FANS!
You know in a lot of sports the referees or umpires have the thankless job: enforcing the rules is not a lot of fun. But so far the ECC is living up to the rave reviews Alan Page and the MN Supreme Court got on these boards and in many quarters.
The threshold for summary judgment is really really high, however, and judging from the ruling on the Motion to Dismiss the court seems to be bending over backwards to give Coleman a fair hearing.
*************
These judges inspire confidence.. im not sure why... but they just seem ... good adjudicators
Mental Image of the DAY here:
[Comment From Lilboyblue]
These judges, I'm thinking, want to publicly display a full airing of everyone's issues, and then reach a sound judgment that way. So it's a good decision and everyone agrees, no grounds for someone to claim there was a voter on the grassy knoll that got disenfranchised
4) ECC Decision
Mere minutes after the above session adjourned (final horn sounded; fans headed out clutching last of Labatt's for snow mobile ride home) another decision from the ECC. Coleman Motion for Inspectors (to go out to 86 randomly (hah!) picked precincts to look at some of those 11000 rejected absentee ballots the ECC already said will NOT be coming to St. Paul): DENIED.
ECC said if Team Coleman wants to look at specific ballots, examine voter rolls, question election officials, they can do so via subpoenas once trial starts. (This also lets Franken challenge said subpoenas, cross-examine, etc.) But that little shack out on Lake Phelan named "Coleman Election Inspectors R Us"? The new one, being built, like all things Norm, from the roof down?
Yeah this ruling means the ECC just sailed their iceboat down the lake on a close reach with Judge Marben leaning out on the port runner hiking 3 feet in the air until Hayden slid them to a hockey stop in front of the Inspector's Shack, covering it in shavings. Then all 3 judges got out and Reilly started up the District Court issue Poulan chainsaw and cut a circle around the shack until it broke free, capsized and sank like a Volvo-bound crime victim of the Stockholm Syndicate. (Don't laugh. The Swedish Mafia has been making hits on inanimate objects like ice shacks and other structures for centuries. In 1628 a defense contractor tried to welsh on a deal with the Mob. Anders Svengaard took revenge by putting out a contract on a navy ship.....and the result for the "Vasa" was NOT pretty!)http://europeforvisitors.com/...
5) Hardly worth Mentioning, but....
Look folks I'm just trying to push pixels through the Internet while telling you about whats happening in the MN Senate recount. Some people think my stuff is worth mentioning in high places like the UpTake blog roll, but I don't think I'm that worthy:
Marc Elias at the after-hearing Presser Friday, on Team Coleman's efforts in court; what he thought of their "fishing expedition":
"If they are fishing this weekend, it will be through little holes in the ice - not in ballot boxes across this state." HaHah!
[Comment From rincewind]
Elias has been reading WineRev??? LOL
ref: hole in the ice
[Comment From Latte Liberal]
RevWine on DailyKos called it this morning.
[Comment From Chris II]
Did he specifically say something about WineRev, or just mention something in his diary?
[Comment From rincewind]
chrisII -- it wsa just the ref to ice fishhing
[Comment From rincewind]
(but if I was on Team Franken, I'd for sure be reading WineRev ;>
Gosh folks, thanks.....but really.... *blushes*
6) Coming Up
This weekend will likely see the latest bodycheck laid on Team Coleman as the ECC will likely dismiss his motion for Summary Judgment. There will likely be other orders issued and a few more legal moves. Then MONDAY, the trial to settle this:
The trial schedule is as follows (ALL TIMES CST):
Monday, Jan. 26- 1 p.m.-4:30 p.m.
Starting Jan. 27, the trial will be in session from 9 a.m.-12 p.m. and 1 p.m.-4:30 p.m. every weekday.
All proceedings in this case will take place in Courtroom 300 of the Minnesota Judicial Center.
And while that is unfolding there is that Supreme Court hearing on Franken's request for a Certificate of Election APART FROM the ECC trial process. The Supreme Court hearing on Feb. 5 from 9 a.m.-10 a.m. has been moved to the Historic Courtroom on the second floor of the State Capitol to accommodate the trial. (Going to do that one with high honors I'd say.)
Saturday Morning Minnesota Media
Star Trib's Pat Doyle only got as close as B5 to the front page but at least picked up a decent headline writer: "Coleman loses bid to check at least 4500 ballots." Star Trib: Remember those 1st 3 words......
Doyle nicely runs down Team Coleman's failures in court yesterday, the ruling against inspectors and leaving the entire summary judgment motion hanging pessimistically for the weekend.....quotes Elias' that Team Franken's POV on trying to get these 4500 ballots in over the rulings of local election officials (piles 1-4) was "truly Alice in Wonderland" because it assumed "scales of errors that is unprecedented" by local election officials. (THAT was Elias visiting the local pond hockey/ recreational league game (got 'em everywhere in the state) and throwing a North Star/Wild NHL-level body check in defense of Gruntvig the goalie that levels 4 bodies in the slot...)
Aha...nice catch, Doyle. Up above in 1) where Langdon and Hamilton were sparring before the main event? It seems they were arguing over a Coleman effort to use the lawsuit of the 64 voters (the one the Supreme Court slid over to the ECC) for their own ends: they want to amend the suit (which has already been accepted for trial before the ECC) and turn it into a class action suit. And what class? How large? Would you believe the class of ballots called "rejected absentee", numbering about 11,000? A backdoor effort (or maybe a backup plan B) to get into court that which they have not been able to bring in through the front door (plan A). ECC heard them out (including Nauen & Kennedy as to whether they WANT 11000 ballots and all of Team Coleman added to their lawsuits) and took it under advisement. WineRev predicts: IN YOUR DREAMS, NORM!
OK hope this will hold you until the ECC rulings come down. Got the late shift at the shop so I'll blog a bit with you and with all the latest news from yust southeast of Lake Wobegon.
Shalom.