The Coleman campaign presented the following notice late Friday afternoon informing the Election Contest Court of their forthcoming motion to prevent the redaction of 933 wrongfully rejected absentee ballots:
PLEASE TAKE NOTICE THAT at a time set by the Court at its earliest
convenience Contestants will seek a temporary restraining order pursuant to Minn. R.
Civ. P. 65.02 enjoining the Secretary of State's Office from redacting the absentee ballot
envelopes associated with the 933 ballots opened and counted on January 3, 2009. This
Motion will be based on the accompanying memorandum and all the files, records and
Dated: February 20, 2009
The Coleman campaign is simply requesting that each of the 933 wrongfully rejected absentee ballots remain individually identifiable. Their request is in opposition to the February 3rd stipulation instructing the SOS's Office to assimilate these ballots into the larger subset of all accepted absentee ballots. The Coleman campaign is seeking to halt the processing of that order.
A review of the original stipulation places the Coleman campaign in a somewhat hypocritical position, but the circumstances have changed. The Election Contest Court presented six categories of absentee ballots which they deemed worthy of future consideration; he ECC also denied King Banaian's Testimony. In light of these prior events, this latest notice seems strategically plausible.
Deputy Secretary of State, Jim Gelbmann (who testified for three days) stated on Friday that about half of the 933 wrongfully rejected absentee ballots had already been redacted in accordance with the stipulation. These redactions are unlikely to impede Coleman's intention. The Coleman campaign has signified that approximately 100 of the 933 wrongfully rejected absentee ballots were actually accepted in opposition to the newly established categories.
I don't think the Coleman campaign solely intends to decrease their deficit as a result of this latest maneuver; they are trying to invalidate the process by which the entire set of once rejected absentee ballots were re-examined and eventually counted. If they are somehow able to prove that one of the 933 ballots was improperly included, they may very well be able to force the equal protection issue. They do not need the full set of 933 ballots to prove their assertion, if in fact their 100 vote statement is correct. I've prepared a few calculations to illustrate this point:
The output of each function represents the probability of an erroneously counted ballot occurring within the currently un-redacted set with respect to the potential number of erroneously counted ballots. The base case contains 466 un-redacted ballots, with respect to Mr. Gelbmann's statement, and 100/933 based upon the Coleman campaign's statement. Using the above calculations and the just mentioned inputs, there is a 100% chance that an erroneously counted absentee ballot will be contained within the remaining set of un-redacted ballots. I also did some other calculations to illustrate other possibilities for comparison. A graph is also provided below which details all of the possible combinations of error rates and un-redacted ballots:
The bottom line is this: if Coleman's request is granted and their error estimate is correct or even just partially correct, the already redacted ballots will play absolutely no role in their Equal Protection argument. If the examination occurs and no errors are found, there is a 69.7% chance that the singular error exists within the other half of already redacted ballots. If the motion is approved, this is a win-win for Coleman; he is either able to prove that inconsistencies occurred, or blame the lawful redaction for his troubles.
It is in Coleman's absolute best interest to ensure that this motion is granted. A few excerpts of the Coleman's argument are presented below:
Pursuant to Minn. R. Civ. P. 65.02, Contestants seek a temporary injunction preventing the Secretary of State's Office from redacting the envelopes associated with the 933 ballots counted on January 3, 2009. The Court should preserve the status quo until it determines the impact of its February 13, 2009 Order on absentee ballots already counted in the election, including those counted on January 3, 2009.
Contestants seek the requested relief to preserve the status quo until the Court determines the impact of its February 13, 2009 Order on absentee ballots already counted in the election.
I. The Relationship Between The Parties Favors Issuance Of An Injunction
The parties are involved in an election contest to determine which party received the highest number of legally cast votes and is therefore entitled to receive the certificate of election. Which votes are in fact legally cast is at the very heart of the matter-and of the Court's charge. Contestants believe the Court must apply its February 13, 2009 Order to absentee ballots previously counted, including those removed from the envelopes at issue here.
II. Irreparable Harm Will Result If The Motion Is Not Granted
The Court's February 3,2009 Order directs the Secretary of State's Office to redact the identifying numbers from the ballot envelopes so that a particular ballot can no longer be tied to the envelope it came in. Without that identifying information, the Court will be unable to determine which ballot was in fact an illegally cast vote and should not be included in the count of legally cast votes, thus removing an important remedy that would be available if the Court applies its February 13, 2009 Order to absentee ballots that have already been counted.
III. Contestants Are Likely To Prevail On the Merits
IV. Public Interest Demands That Consistent Standards Be Consistently Applied
v. Administrative Burden On The Court Is Minimal
For the reasons set forth above, Contestants respectfully request that this Court issue a temporary injunction directing the Secretary of State's Office not to redact any information from the envelopes associated with the 933 ballots opened and counted on January 3,2009 pending further order of this Court.
Dated: February 20, 2009
Franken also responded to Coleman's requested injunction by refuting each of Coleman's arguments:
Contestee Al Franken opposes Contestants' Motion for Temporary Injunction, The motion flies in the face of a Stipulation and Order freely entered into by the parties and affirmed by the Court. The Stipulation and Order settled and resolved one of Contestants' claims and
furthered the strong public policy of ballot secrecy. Contestants' effort to renege on the stipulation they freely entered and eviscerate the binding order of this Court warrants the imposition of sanctions.
Contestants' motion should be denied. The factors of Dahlberg Bros. v. Ford Motor Co., 137 N.W.2d 314 (Minn. 1965) all require this result:
1. The relationship between the parties strongly cuts against an injunction.
The relationship between the parties is governed by the Stipulation and Order of February 3, 2009. Contestants seek to breach the Stipulation, defy the Court Order entered on the stipulation, and make the Court a party to the breach.
2. Irreparable harm will result if the motion is granted.
As the Supreme Court recognized in its Order of December 24, 2008, entered at the request of both Contestants and Contestee herein, ballot secrecy is a paramount public policy. Minnesota law mandates secret ballots. See Minn. Stat. § 206.80 ("An electronic voting system
may not be employed unless it: (1) permits every voter to vote in secret ...."); see also Application of Andersen, 119 N.W.2d 1,8 (1962) ("Procedural statutes governing elections are intended to safeguard the right of the people to express their preference in a free election by
secret ballot and to have the results of the election governed by the votes so cast."); Minn. Stat. § 202A.18 (requiring secret ballots even for caucuses and conventions).
The 933 ballots should never have been numbered. On February 3, 2009, recognizing this public policy, Contestants and Contestee freely entered into a Stipulation that the numbers would be removed.
3. Contestants will not prevail on the merits.
4. The public interest requires that the February 3 Order be enforced.
5. The burden on the Court by this motion is not administrative, but goes directly to the heart of the integrity of the judicial process.
The motion should be denied.
Contestee advised counsel for the Contestant that this motion is baseless and warrants the imposition of sanctions. Contestee requests that the Court establish a briefing and hearing schedule so that Contestee may bring on a motion under Minn. R. Civ. P. 11 and Minn. Stat.
After all of this, I find it unlikely that the Election Contest Court will override Coleman's once prejudiced dismal of this very topic.
Franken was also supposed to present his updated list of wrongfully rejected absentee ballots on Saturday; he did apparently do this, but a court filing is unavailable. The PioneerPress was apparently given access to the document containing 1,585 ballots, 781 of which the Coleman campaign has already identified, but they thought it was more important to talk about "snark" within the document than to actually present the document; nice work PioneerPress. (It's only a matter of time before they join the likes of their now bankrupt competitor, the StarTribune.)
Of the 1,585 presented by Franken 804 were not already identified by Coleman; this number is actually slightly more than the 792 he had already presented. This could mean several things, but it is impossible to definitively conclude anything without actually looking at the list which, should at the vary latest be available on Monday when the ECC resumes.