A big week to come starting TODAY. No witnesses but the Election Contest Court is IN SESSION starting at 1:00pmCT on the UpTake. With your recs and comments this diary will be up until 1:00pm. If it rolls off the page I'd say head over to TheUpTake.com for their liveblog.
It is "Motions Monday." Attorneys for both sides can and will make motions, argue against the other side's motions. The Court will act more like an appeals court. Any of the 3 judges will be able to interject with, "Counselor, do your actually expect this Court to...." or "Mr. Magnuson, as MN's Supreme Court has already said, 'This is NOT Florida'...".
There may be sidebars and recesses to allow for plenty of furious speculation here and on the UpTake. And we can hope as the day wears on (or tonight or tomorrow) the ECC will make decisions and uphold, grant, or dismiss various motions. ("Take under advisement" will be "later"; "dismiss with prejudice" will be "Don't you bring this up again or else.")
A review of numbers and legals just past the Orange fold.....
UPDATE 2
Well THAT was fast. The Elections Contest Court spent all morning in chambers with attorneys for both sides. Then at 1:00 they all appeared---- with a witness. 3 absentee ballots were flashed (not actually entered into evidence.) Atty. Hamilton for Franken kept his vicious cross-examination down to "We're you contacted by the Coleman campaign before your testimony today?"
At 1:18, "Tung-tong" (From Law & Order) Court recessed until 9:00am Tuesday. Motions? None in open court today. Orders? None issued so far (although to be fair they may be being written as we speak. The ECC HAS issued Orders rather late in the day on several occasions.)
So as has been often the case with the case of the Recount: "We'll see."
Thank you all for reading, commenting and recommending.
Shalom.
1)The Numbers
The most important number: Franken +249 (last change: 2/10, when Franken added +24)
Norm Coleman's side has to get at least 250 net votes his way to overcome Franken's lead. His case has 3 parts:
1) A challenge to 133 ballots in a Minneapolis precinct that were cast (according to the voter sign-in logs and the machine tapes from the counting machines) but which have apparently been lost--- which was discovered during the state-mandated recount in late November/early December. Not all these votes were for Franken, but they were NET for Franken by +46.
Prospects: on the slab in the morgue. No way these will be thrown out; its just the ECC hasn't called in the Coroner for a death certificate....yet. Even Team Coleman seems to know this; they have only noted these 133 in passing in court. Besides, 46 votes are not enough---they might be part of something bigger, but 46 is still smaller than 249.
2) Maybe/possibly as many as 100 votes for Franken, Coleman claims, are the result of "double counting" in the Recount. When an absentee ballot comes in to a county or precinct, its on 20lb. paper (like copy paper) and folded. The vote counting machines are designed for heavier, unfolded paper (almost card-stock, so they won't jam) so 2 (req. by law to prevent fraud) election officials copy over the absentee onto a blank ballot and run it through the counting machine on election day.
The Coleman claim is that during the Recount afterwards that in about 100 cases BOTH the original that was mailed in AND the duplicate that was actually used for voting purposes were counted, thereby boosting Franken's total by about 100.
Prospects: Intensive Care with a DNR order (Do Not Resuscitate) This would be a problem and certainly a mistake in need of correction. BUT, like most courts, the ECC really likes something called EVIDENCE. In this case:
"Here is the original absentee sent in by Sigrid Olafson to Rock County precinct A-4. Here is the duplicate ballot made by Sven Svenson and Ole Larson. And here are how the numbers changed...."
NOTHING like this has been offered by Team Coleman. They have only mentioned this "duplicate/double counting" when Ben Ginsberg holds a halitosis presser, and in passing in court to #3 below as an example of mis-handling ballots. And again, its only 100 ballots which is still less than 249. Even 100 + 46 is still less than 249.
Which is why Team Coleman has bored us all to tears with
3) Properly/Lawfully Rejected Absentee Ballots. None of these ballots have been opened.These are absentee ballots that local officials rejected for 1 of 4 legally required reasons. Out of almost 300,000 absentee ballots, almost 12,000 were rejected. But these 12,000 (called the "Universe" on many of these boards) has been shrinking (which has a very philosophical/astronomical/cosmological/metaphysical ring to it. Papers, master's theses and dissertations are waiting to be written!)
From 11,893 on Election Day to 10929 on January 3 (when 954 ballots were opened and counted and Franken's lead grew from +49 to +225).
From 10,929 to 4797 on January 23 (the last day for pre-trial filings. This number was affirmed by the Court on Feb. 2 when it ruled the other 6132 definitively OUT, despite several attempts by Coleman's side to keep the "universe" at 10929.)
From 4797 to 4623 on Feb. 9 when the Court ruled definitively that 174 absentee ballots that arrived late (after election day) were OUT because the law is clear on this matter.
From 4623 to 3500-3000 on Feb. 13 when the Court ruled that out of 19 categories of rejected absentee ballots, 13 could not be accepted. (Marc Elias of Team Franken at a presser said they were confident another 4 categories were also OUT, but this is as yet unclear.)
Again: None of these ballots have been opened. They are still secret.
Tom Tech has crunched numbers complete with Venn diagrams here:
http://www.dailykos.com/...
Others are weighing in via that great, real-time Internet kind of way with comments and diaries. The biggest issue hanging fire (and likely the subject of a motion or 2 today) are those ballots where there is a difference in signatures between the absentee ballot and the application for such a ballot.
UPDATE 1
Part of this was in the original diary but having had a shower it occurs to me there is a tougher angle on this too. What do you think, people?
(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 over this and the Court will earn its pay:
A) If the application is missing (through no fault of the voter) 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 the the GOP list (today) and this court will take this quite seriously.
C) Darker scenario: Suppose a county auditor named Kathleen Harris/Blackwell 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 (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. If the ECC turns down the ballots because of missing applications (C) then voters are disenfranchised because of fraud and through no fault of their own (A).
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?
I actually think this is a rather close call.....will we see our first ECC 2-1 decision? Will the losing side on this issue cite this on appeal to the MN Supreme Court? As in all things Recount: "We'll see."
Prospects: The sun is setting on the Coleman case. This may become much more visible after today.
2) The Legals
What are the motions we might hear today? The Court Orders and Motions already pending are here:http://www.mncourts.gov/...
For reference, watch the suffixes: "contest-ANT" is Coleman; "contes-TEE" is Franken.
One motion already in the hopper is this Franken "Motion in Limine" to exclude testimony of "King Banaian". The "Motion in Limine" (limine= Latin for threshold/entryway) is an attempt to fight him over there so we don't have to fight him in here (on the witness stand). King Banaian is the man's name (and what is it with Republican first names? "King".. "Cullen".."Tucker"? I first read "King Banaian" as a variant spelling of an oversize example of that tropical/Indian sub-continental tree with the extra trunks under each main limb.)
Team Coleman apparently want to call Banaian (an economist at St. Cloud State University) as an expert witness to testify how the variations between counties and their absentees is so wacky that the ECC has no choice but to look at the entire "universe" of 11,893 ballots.
Team Franken will argue a) the variations are not statistically significant b) that Banaian is only an economist not a statistician c) the ECC has already ruled the "universe" down to under 3500.....so d) why have this guy come in at all?
Other than this both sides have their atomic weaponry available: Motion for Summary Judgment & Motion to Dismiss.
"Summary Judgment" is asking the Court to say, "We've heard enough. This is so compelling (for OR against) we're going to rule right now."
"Dismiss" is what it sounds like: asking the Court "This case is SO LAME we shouldn't waste anyone's time on it anymore." (Like the Coleman case; Franken would be the only one to file one of these at this point.)
Both sides already did one of these pre-trial in kind of a formality sort of way and the ECC denied them all around. Where it might get interesting is an exit or 2 up ahead. Suppose the Coleman case continues staggering like a mule on glare ice that has eaten a drug dealer's stash. They get down to writhing over ballots from Wadena that might have been filled out by an Iraqi with a purple finger whose ink smeared onto the registration card. Team Franken moves to "Reinstate/Resubmit our Motion to Dismiss" ..... and the Court (AHA!) "takes it under advisement."
And let it also be noted from Friday's Court Order: the burden of proof for rejected absentee ballots being admitted (which is what Coleman is trying to do) was RAISED. Up until now Team Coleman was flashing all these ballots in Court in front of various County election officials to show "this ballot was rejected for reason X; do you still say it shouldn't be counted?"
As Marc Elias (who's specialty is "election law"; rather an esoteric field and Franken's choice of him is paying RICH dividends!) from Team Franken pointed out in his presser (and the silence from Coleman's side is telling) NOW the Horse Denture brigade MUST say about each ballot, "This ballot was rejected but in fact it came in on time (proof) and passes each of the 4 statutory reasons (proof) that would otherwise disqualify it." You want 'em in, Norm? YOU (not the county, not the ECC, not anybody else) has to PROVE each ballot (or category) meets all the legal requirements.
Heavy indeed!
Kossack FischFry has this diary up about the legal side:http://www.dailykos.com/...
Meanwhile it could get rather arcane. What you might hear a lot is "Section 209" and "Section 204".
"209" is the base authority for the Election Contest Court and its mandate is to determine who got the most legal votes (and determine the meaning of the all important word "legal.")
When a contest relates to the office of senator or a member of the house of representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of
election. The judge trying the proceedings shall make findings
of fact and conclusions of law upon that question.
Section 209 (with repealed parts) here:http://law.justia.com/...
"204"is authority for correcting "Errors and Omissions" in 204B.44 here:http://law.justia.com/...
In VERY broad terms both sides will argue and make motions on the basis of 209 because thats why they are here. But overall the Franken Team will be looking to stop with 209. They are willing to go 2 steps into 204:
a) the improperly rejected absentee ballots (the 933 that were counted on Jan. 3, and the 393-418 (depending on how you figure) still left from this batch of the
universe") and
b)likely the rest of the 61 ballots left in the "Nauen" group of ballots (61 absentee voters who filed a separate case; they received legal and $ help from the Franken team; named for their lawyer Nauen; ECC last week ruled 24 of these IN; not yet opened and counted but the voters have said out loud they voted for Franken; so 61-24= 37 ballots to go). But the Franken team wants to limit "204" to this beachhead and no farther.
Team Coleman wants to fight all across "204" to get in as many lawfully/properly rejected absentees as possible--- its their only hope.
For cheering purposes "209" mostly favors Franken; more rulings in favor of "204" will roughly favor Coleman.
And let me say once more, the ballots Coleman is trying to get in have been TWICE rejected by local election officials (once on or before election day, and once by Supreme Court order from Dec. 18, when all the rejected absentee ballots were ordered sorted by which of the 4 legal reasons they had been denied.) NONE of these ballots have been opened. Both camps are only guessing who they may be cast for, although it may be fairly good guessing. But NONE of these ballots have been opened.
The Court and Judges Hayden, Marben & Reilly
The 3 judges have truly earned their pay by their patience and silence. (Me, I would have been lashing Freidberg with wet spaghetti from day 2 when I wasn't laughing.) They have really lived up to the old adage "sober as a judge." (Not referring to their drinking habits, but a facial expression that is poker-faced, somber.)
We have a number of lawyers, paralegal types and wannabes around here (underwhelm, kalaidescape, abowers, fischfry, rincewind, beastiemom, jeffinca that I know of; there are more and I apologize for not knowing or noting you here; I'm just not remembering right now) who can fill us in on motions today as we go along. (An esq. in your comments would let us know your atty creds.) But they can also give us some read on the judges' inner life.
For instance Thursday Coleman attorney Langdon was faltering in his argument and blurted out to Judge Reilly, "I see you are not buying this, are you?" It all ended up in a bit of courtroom laughter here:http://the-uptake.groups.theuptake.o...
But our legal eagles have been unanimous: a judge laughing at a lawyer is NEVER a good thing for that lawyer's case. EVER.
Then too some of the Court order from Friday (when they shot down 13 categories) had language that followed Franken attorney's Elias' arguments quite closely. This was after Thursday when all three refrained from interrupting Elias in his presentation for better than 10 minutes. By contrast they were breaking in on Coleman guys Langdon & Friedberg a lot.
So today what are the judges' questions? Tone of voice? Do they get picky? Pushy? ("Just answer the question, Mr. Trimble" could be telling.) Anybody snap "That's enough Mr. Lillehaug"?
As in all things Recount: "We'll see". But now I hope we'll know better WHAT we're seeing.
Monday Morning Minnesota Media
Chris Steller at the Minnesota Independent uses the Pioneer Press' own words to overturn the Press' hasty editorial calling for a Senate revote. http://minnesotaindependent.com/...
For those who would like to contribute to Al's effort "so the battle be not lost for want of shot nor powder":
https://secure.alfranken.com/...
The Laughs (to keep from Screaming)
Finally, until things start at 1:00, or if things get tedious in ECC today, here are a few lawyer beauties that maybe Noah or Mike at the UpTake can drop on the Coleman table when they are not looking. It could liven things up:
From official court records nationwide, actual Q&A from the (I'm pretty sure) trial law professors who TAUGHT Trimble, Knaak & Friedberg:
Some wonderful questions:
- Was it you or your brother that was killed in the war?
- The youngest son, the 20-year-old, how old is he?
- Were you alone or by yourself?
- How long have you been a French Canadian?
- Do you have any children or anything of that kind?
Some wonderful answers:
Q: What happened then?
A: He told me, he says, "I have to kill you because you can identify me."
Q: Did he kill you?
*****
Q: You say that the stairs went down to the basement?
A: Yes.
Q: And these stairs, did they go up also?
*****
Q: Have you lived in this town all your life?
A: Not yet.
*****
Q: What gear were you in at the moment of the impact?
A: Gucci sweats and Reeboks. (WineRev testifies!)
*****
Q: Are you sexually active?
A: No, I just lie there.
*****
Q: Now doctor, isn't it true that when a person dies in his sleep, he doesn't know about it until the next morning?
A: Did you actually pass the bar exam?
*****
Q: ALL your responses MUST be oral, OK? What school did you go to?
A: Oral.
Dead people are hard for lawyers:
Q: Doctor, how many of your autopsies have you performed on dead people?
A: All my autopsies are performed on dead people. Would you like to rephrase that?
*****
Q: Do you recall the time that you examined the body?
A: The autopsy started around 8:30 p.m.
Q: And Mr. Denton was dead at the time?
A: No, he was sitting on the table wondering why I was doing an autopsy on him!
*****
Q: Doctor, before you performed the autopsy, did you check for a pulse?
A: No.
Q: Did you check for blood pressure?
A: No.
Q: Did you check for breathing?
A: No.
Q: So, then it is possible that the patient was alive when you began the autopsy?
A: No.
Q: How can you be so sure, Doctor?
A: Because his brain was sitting on my desk in a jar.
Q: I see, but could the patient have still been alive, nevertheless?
A: Yes, it is possible that he could have been alive and practicing law.
And finally, for ALL of Team Coleman's ballots proffered and then withdrawn, for their striking of their entire first 2 days of their own case in ECC:
A Texas attorney, realizing he was on the verge of unleashing a stupid question, interrupted himself and said: "Your honor, I'd like to strike the next question."
OK Hope this will hold you all until 1:00pmCT. Thats the latest round-up from yust southeast of Lake Wobegon.
Shalom. (Oral.)