Franken leads +225 (+21 of the "Nauen61" the Elections Contest Court has ordered into the "Ready to Count" pile at the the Secretary of State's office; and now +14 of the "Nauen61" have ALSO been ordered and added; all these voters have indicated they voted for Franken)= +260.
The Election Contest Court (ECC) heard closing arguments from both sides Friday, an hour apiece, posed for pictures, and then.... took the case into chambers. Its in their hands now.
We could get answers and move toward an end anytime, yea even this week.
C'mon past the Orange fold for a wrap as we wait......
UPDATE: Looks like animal rescue and the disabled American veterans are going to get $50 each---- you people are fantastic! I have raised this version 0.1 in honor of all of you who sent something.
1) Election Contest Court (ECC) Episode XXXVIII The Closings
After some legal "house-keeping" early in the day there came the Main Event: the Closing Arguments of Coleman vs. Franken.
A closing argument is NOT evidence and NOT testimony. It is basically a sales pitch, an attempt to persuade the court to use YOUR lens, YOUR field guide to look at the evidence and testimony. If justice is rightly shown as a woman blind-folded holding scales (whether or not she wears the "Full Ashcroft" or is in classical "au naturelle" Greek) then you have to appeal to the ear. Rhetoric, even oration, are tools of the trade.
Both sides chose their champions: For Franken: Kevin Hamilton; For Coleman: Joe Friedberg. Each side was alloted one hour and both sides took full measure.
[Comment From feebog]
Just a thought. Team Franken is very effective. Lillehaug is great on examining and cross-examining witnesses. But Hamilton really can deliver an argument, and I think he is the right choice for closing.
Hamilton closed first. He moved through his introduction-- "No election is perfect, so errors were present"--- as smoothly yet defining-ly as the cowbell, then drums, add bass and then lead guitar in the first measures of "Honkytonk Woman."
Hamilton took aim at the courtroom-and-hallway Coleman strategy focused on alleged errors (to the point of wanting the "fatally flawed" "error-riddled" election set aside and a new one run.) He laid it before the Court: the Berg boys' "advocacy" of that strategy "had outrun the evidence" for it:
- the errors have to have changed the outcome of the election
- the burden of proof to demonstrate this is upon the Contestant Coleman
- the Contestant does not have evidence to prove it.
The contestant "has [so] woefully failed to carry the burden of proof" that the Court should grant Franken's Motion to Dismiss (from last Thursday.) It was done with real style, the legal equivalent of Mick Jagger's opening snarl after the instrumental intro, "I MET a GIN-soaked BAR room QUEEN in MEM-phis..."
Hamilton dumped THAT freighter-full of iron ore from Duluth onto the Coleman table and then proceeded to crank through EVERY last challenge the Coleman side raised. He used the index of a Coleman (!) spreadsheet to show how weak their argument was over rejected absentee ballots. "The failure of proof is breathtaking."
He used photos of witnesses like Pam Howell, the Coleman witness and election judge whose testimony (entered, stricken, restored, re-stricken, pieces restored) was the only limp link to the claim of "double counted" votes.
He swatted away the Coleman mosquitoes around the 133 Minneapolis ballots that had disappeared. They should still be counted because the voters who cast them exist, signed in, and the voting machines noted their ballots.
[Comment From lostboyjim]
My god, it's like a closing argument on Law and Order. It's that good. But he needs bang his fist more :).
He NAILED Team Coleman like an tenor hitting the high note on the National Anthem with the Coleman attempt to back out of Rule 9, which they had stipulated (agreed to) when they were leading in the recount, but now wanted to get out of since they are trailing.
"Contestants’ attempt to back out of their agreement ... is as cynical as it is groundless."
(Rule 9 had to do with how to Recount absentee ballots and their machine-readable duplicates. What stinks like an un-tuned chainsaw burning swamp gas is the Coleman side's effort to "UN-stipulate"; lawyers and courts DON'T DO THAT)
It was a masterpiece of methodical, never boring, detailed, factual, logical "leave no stone unturned and leave no turn un-stoned", relentless, "Karl Rove would gulp in fear if he were the defendant (a fond wish of mine)" Closing Argumentation.
"As the record before this court vividly demonstrates, Al Franken received the highest number of votes in this election. Al Franken is Minnesota’s senator-elect. He is entitled to the certificate of election."
And then it was Joe Friedberg's turn to close for Team Coleman. Joe Freidberg is no Kevin Hamilton, he is Joe. And he stayed within himself. He railed against the ECC's Friday the 13th (of Feb.) decision as "changing the rules in the middle of the game" (They REALLY didn't like that ruling. Ben Ginsberg's spinning in the hall after that date started to drill through the marble like a core sampler drill with a fresh diamond bit.)
Joe was charming and self-deprecating. You could see he would play well to a jury. You can see if he has only to raise doubts so one juror has doubts beyond a reasonable level a Friedberg client may be found innocent by reason of a hung jury.
He didn't do powerpoint. He didn't do spreadsheets. He worked from a yellow legal pad and his own handwriting in a time honored way.
He asked the court to come down off its standards of "strict compliance" on absentee ballots to the Coleman position of "substantial compliance" with the law. He argued that if the court kept to the strict standard they have shown so far (particularly in those Friday the 13th rulings) then errors were made and ballots were unequally treated.
OTOH if the court moved to "substantial compliance" then the Coleman camp knew of about 1360 ballots that substantially meet the requirements (and implied they should be equally treated with the other ballots already counted.)
If the court insisted on a strict standard then let the Minneapolis 133 be strictly excluded because we do not have the physical ballots. If they be allowed in then fairness/justice/equal protection calls for other ballots to also be admitted.
His charm and self-effacement led him (perhaps inadvertently) to undercut much of his case. He was praising the judges for their learned-ness and noted they knew much more about election law than he did. In fact he himself had learned a great deal about election law in the last 7 weeks because when they started "I knew nothing about it."
As with all things Recount related: "We'll see."
Afterwards there was an impromptu photo session, judges standing by their chairs, lawyers and (bless them all) the clerks and court reporters. Everyone realized it was historic and deserved a photo for the ECC ruling on the closest Senate race in Minnesota history. Friedberg said in his decades of practicing law he'd never posed with the court and counsel like that.
Oh, and then, as everyone was getting ready to pack up, Jay Weiner from Minn Post reports:
After that fuzzy picture-taking, there was still one final legal proceeding. It had to do with evidence that had been in dispute.
The courtroom was empty save for the lawyers, clerks, the judges and some hangers-on.
Franken lawyer David Lillehaug offered boxes and boxes of evidence.
Friedberg, to make the event official, objected.
(Presiding Judge Elizabeth) Hayden looked over her red-framed reading glasses. "Overruled," she said, with a slight smile.
"We rest," said Hamilton.
Bang went the gavel of court clerk Christopher Channing, who added: "All rise, the court is in recess."
Now, we wait.
2) Next Steps
What can we expect and when? ABowers13 likes making lists and his prognosticating has been pretty good. His take on the immediate future (like..... wrap-this-before-April future??!!)
From ABowers13 comment from Thursday March 12:
Actual schedule - from my crystal ball -
1. Friday - Summary arguments from Coleman & Franken.
2. Monday - Court orders the two sides to come up with 3 lists:
1. Ballots BOTH sides agree should be counted.
2. Ballots Coleman wants counted and Franken challenges.
3. Ballots Franken wants counted and Coleman challenges.
3. Wednesday List#1 - ballots stipulated by both sides get sent to SOS for counting. Lists #2 & #3 are reviewed, one by one, by the our 3 judge court and sorted into two piles - One pile accepted and off to SOS. Other rejected and put back into black hole with other 11,000 rejected ballots.
4. ???Day - SOS has ballots from all over Minnesota sent to his office. He rounds up the usual suspects and schedules that great opening-up day. They will be counting less than the 900 previously and will NOT mark ballots so whole thing should be over by noon.
5. ???Day - Court rules Dinkytown ballots IN (the lost net 47 Franken); rules Duplicates count unchanged - no uncounting; apartment numbers don't matter UNLESS apartment complex divided into precincts; election was clean, thorough, fine - no equal protection violation. And all other issues moot.
6. Wednesday 25? - Court rules Franken got the most votes and adjourns.
Again, its one blogger's opinion but worth considering.
3) A Fife and Drum
Yesterday in the comment string I was moved by these two comments (edited for space):
One thing no one has really talked about (13+ / 0-)
is how the judges will handle the counting of the remaining ABs. There will be around 600 or so to count, as we've been saying from the beginning.
But, I am hoping they will stage it such that they have written up their decision without naming a winner and allow that final counting to be the deciding moment as to who gets the certificate. You know, the judges take themselves out of the picture and we go back to that January 3rd atmosphere of "what is actually contained in those ballots?"
That way, in the media at least, there will be this sense that impartial justice has been done and Coleman has a chance to overtake Franken, only to have his whole world turned upside down as Franken stretches his lead beyond 300 votes.
That's my hope anyway. It really should not be about the court; it should be about the people in the final analysis. We are the ones who voted.
by Mi Corazon on Fri Mar 13, 2009 at 08:24:25 AM CDT
I hope that there is considerable drama and "suspense" built into the counting. I want the public to sense that the decision was not made by the judges, only that they ruled certain other ballots were legal and should be counted.
In the public's mind it is much better if they sense Franken won because of "counting" not because of the "judges". That's what gives him stronger legitimacy.
I know one thing. The MNSC is not going to take very long once this ECC process runs its course. They do not suffer fools gladly, and with two Supremes on the Canvassing Board and now three very careful judges wading through all this paperwork, they understand that Coleman was given a fair hearing in a close election, and that, he lost.
by Mi Corazon
Mi Corazon is RIGHT ON! I started this series (v. 1.0!) because I was caught up in the coming drama of the Recount and thought Kossacks would like to keep up on it. Being political junkies around here it seemed a natural fit.
And yet something changed in January as the whole thing moved toward the ECC and I think its because it moved from the political to the legal realm. It was harder to write about the deal, and maybe harder to read about too. Oh there was plenty of action, many twists and turns. I learned more than I ever wanted to about "Motion in Limine", "pro hac vices" and precedents and Rules of Evidence.
But all that, important as it has been (and is yet to be) has been in essence a massive detour. Mi Corazon's remarks are the first sighting of those delightful signs "End Detour" and "Resume Speed."
Back in the day of WineRev's youth my sister and I enjoyed laughing over the comedy show "Green Acres." Eddie Albert played a lawyer disgusted with modern urban life who moves himself and his glamorous wife (Eva Gabor, complete with heavy Hungarian accent) to a farm. The laughter came from the clashing outlooks between the locals and the new exotics.
About every 3 or 4 episodes Oliver Wendell Douglas (Albert) would wax rhapsodic about farmers: "the backbone of the country", "here the embattled farmer stood and fired the shot heard 'round the world." As he did a fife and drum would start up in "Yankee Doodle" manner which everyone except Albert could hear playing.
Well strike up the drum and fife, the WineRev is going to preach a moment.
The Recount has been the long end game of the MN Senate election. But that election and the whole election that went on around the country was of course an exercise in democracy, of "demos"-- the people and "krasis"-- to rule, of "the People ruling themselves."
The last 8 years have been a terrific assault not just on the legal system, not just on American idealism, not just on the Constitution. They have been an "Empire Strikes Back" assault on aspiration, on ordinary people living ordinary lives, on the entire concept of democratic rule.
By the narrowest of margins (5-4) a people-loathing, power-grasping regime came to power in the home of a great democracy, our home, our democracy. Wars were started. Dissenters were trampled (the Republican campaigns and National Conventions of '04 and '08) and even murdered under suspicious conditions (Pat Tillman). People were jailed arbitrarily (Padilla) and languish still. Senator's offices were biologically attacked. Governors were railroaded out of office and into prison. The Treasury was looted for private gain and our currency debased. Mercenary armies were raised while true soldiers suffered from scaled back medical care and died from inferior equipment. A propaganda behemoth of Goebellian depravity still spouts and spumes acid on the idea that power belongs to anyone other than the few.
But "the people" would not submit. Amid the humiliating airport searches and across their wiretapped communications they voted down, voted out, argued back against the bastards. Unevenly, haltingly, but steadily. For the last few years all those stories from American history, our history, have been unusually lively to me. For good reason I have felt a kinship to Francis Marion the Swamp Fox, and Greene, and Washington.
The MN Senate election ended up breath-takingly close. Who won is actually NOT as important as the fact of the Recount itself. A law, drawn up by the people of Minnesota, was in place, with procedures and plans and rules and clarity of what was to be done--- so that the voice and vote of the PEOPLE would be expressed. Those 3 million votes would be counted..... and recounted, carefully, patiently.... by poll workers and election officials from Pipestone to Baudette... by the people..... for the people.
The whole machinery cranking up and going forward was a smashing defeat for the smashers. "Brooks Brothers" rioters would NOT carry the day. (The only people I really called out in these diaries, daring those jackboot wannabes to come here for a round to offset Florida 2000. The gasbag cowards never showed.) The Jim Baker (Bush family fixer) Money-and-Lawyer machine would NOT clank their panzers to another blitzkrieg win. Ben Ginsberg's loathsome contempt and arrogance would NOT intimidate or stampede the Secretary of State or those in the courthouses. (Interesting that Ginsberg was hired on back in November but scurried in the background all through December during the actual Recounting and only emerged into light when the court maneuvering started. When these last ballots get counted I don't think Ben will be visible at all. Ballots being counted and democracy in action are like garlic and a silver cross to a vampire like Ginsberg.)
The arguments of the last 7 weeks and the orders and decisions yet to come are merely (MERELY!) an extension of that democratic impulse. Mi Corazon is right. The ECC and even the MN Supreme Court should step back and let the votes, these finally settled upon, LAST votes of 2008, be counted in front of the PEOPLE. Its their election, their vote, their state, our democracy. Huzzah!
PS. I am overwhelmed by your kindness from yesterday. Your comments and good wishes and coins are a very real healing to me and I thank you. Thanks to you I'll be in Steel City in August.
I have the weekend off so I can get to work answering every one of those e-mails that came in. Indeed the $2 and $7 paypal entries leave me bawling because I can guess what a hardship must lie behind those "widow's mites." I want to write notes to go with the checks to animal rescue and the Disabled American Vets so they understand where those $40 each came from, the Nation of Orange. You all are good people.
Saturday Morning Minnesota Media
The Rochester (Olmstad Co., home of the Mayo Clinic) Post Bulletin has a story from a couple days back. Sec. of State Mark Ritchie is on a statewide "listen & thank" tour, going around to local election officials to do both of those. Its a local view of how the Recount and election process is being seen, but the comments are a pretty good flame war to warm up your fingers (all those marching orders from ACORN that Ritchie is carrying out.)
The Minnesota Independent has a string of short stories on the Coleman credit card info release mess, including a computer security pro (complete with slight gray at the temples and a small pony tail in true, well-aged hippie style) who calls the Coleman side's explanations and defenses BS (in unabbreviated form): http://minnesotaindependent.com/...
Doyle & Duchschere rate the front page today (A1, bottom left) with a decent few paragraphs on the front actually leaning a bit toward Franken. They quote from Hamilton's closing, "The law requires proof that an error did, in fact, change the outcome. This is exactly what is missing from the record."
The Pioneer Press' blog PolAnimal (from Rachel Stassen Berger) has a nice set of insights to the human side of the trial among the lawyers. (Since it is nice and human you will have guessed Ben Ginsberg is not mentioned.)
OK, now we wait... for orders and decisions. I'll post when there's something to post so this series may not be quite daily. In the meantime I'll work on thank you notes and the "collection" project as noted last weekend in v. 95.0. But thats the latest from yust southeast of Lake Wobegon.