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Franken wins by +312 votes.

Team Franken FILED their Respondent's Brief on Monday. WordAlchemy was up with a "breaking diary" and jpmassar offered a great first take here:

Coleman can (optional) file a Reply to Respondent's Brief By THIS FRIDAY, May 15.

Oral arguments, MN Supreme Court: June 1, 20 days from this morning.

A look at the Brief past the fold......

       The Respondent Responds (take that, you hacks!)    
      Monday afternoon Al Franken's legal team did the usual lawyer's appeal thing-y and ran the clock down to the last hours before filing their Respondent's Brief. (For those of you keeping score it sort of helps to take it to the last minute. IF Coleman is going to file an official Reply to Respondent's Brief, the due date is this Friday the 15th. Filing right up against this May 11th deadline means the Coleman side has the minimum number of hours to work on their Reply.)  If you've got the time, you might as well use it, right? Besides for Lillehaug, Elias & Co. it takes longer. Their pride prevents them from submitting a Brief done in crayon. OTOH it takes a while to fit a Brief with 1.21 gigawatts of power....especially since DeLoreans are so hard to find these days.
   PDF of the whole 53 pages is here:

   Just in formatting (from this non-lawyer's view) it is elegantly written. They give a Table of Contents and then list all the cases they are citing, the statutes they are citing, all by page number and then get down to a brief review of the Recount from Nov. 5 to yesterday.
    A Respondent has to do a few things in their Brief. Since the Appellant gets to go first AND they can even Reply (as a sort of final rebuttal; its rather fair, since the "burden of proof" is on the Appellant---its the tougher job so they get some extra opportunity) the Respondent has to play both defense and offense. Defense means doing your best to dismantle the Appellants' case. Offense means counter-punching, showing the Court why they should not only dismiss the Appellant but also buy into the Respondents' line.
First pass (the Uptake)

[Comment From katelync]
@pj I thought the tone was perfect. They (Franken's Team) effectively refuted the Coleman claims but did so through citing evidence from the trial and precedent in other legal cases. It wasn't vague in any area so I don't think they overplayed the notion the Coleman case fell short.

And Kossack TerribleTom offered:

One test I like to apply to an appellate brief is this: If I were a judge, to what extent could I base a sound opinion on the holdings set forth in this brief? With that in mind, Franken's brief approaches a pre-written opinion. Coleman's brief does not. Not even close.

    The defense/dismantling (sounds like removing a shelf above the fireplace) starts early in the Brief:

"With the voluminous record before it (142 witnesses, 1900 exhibits, 20,000 pages of transcript) the trial Court (Election Contest Court: ECC) issued a unanimous decision on April 13 dismissing each of Appellant's claims on multiple, independent grounds."

    As in, "you gonna mess with the work of those 3 judges who put up with 7 weeks of this lutefisk and decided it really does stink on ice"? I think that's called "burden-ing the proof."
    And the next sentence is

"The (ECC) rejected Appellants' central attack--involving the treatment of absentee ballots--- for a multitude of reasons, including improper pleading, insufficient proof and failure on the law."

   I don't know law at all but these three sure sound like a Joe-Curly-Moe triple cheek-slap to me..... and all this is 2 1/2 pages in among the narrative (with 43 to go!).

   The next page David, Kevin & Marc really rev out the old Evinrude there in drydock, with the competition clutch and a flathead mill, walkin' Thrunderbirds and lettin' the leg pipes roar:

"(appellants') claim that this Court should substitute its judgment for the Legislature's by rejecting clear statutory provisions in favor of an invented regime that finds no support in the facts, has no basis in the law, and suffers from a host of procedural problems."

   This is heading off for contemptuous.....not of the Court, but of their "worthy opponents". In carefully crafted legal language they are indeed "telling us how they REALLY feel." I mean: "no support in facts... no basis in law...invented regime". WOW. That is serious calling out, sort of like going on DailyKos and calling someone a "pootie-hating Cheney-kisser who hates 'Young Frankenstein'".....  you know, serious fightin' words.
   14 pages into their PDF Team Franken really gets rolling and passes from defense to counterattack (like Longstreet holding out until midday on the 2nd day of Second Manassas, and then smashing Fitz-John Porter with a tremendous drop punch that wrecked the "Army of Virginia" as an organized body and sent John Pope chasing Indians for the rest of the Civil War).
   They really get down on the Coleman legal team:

"Appellants' statement of the case pays little heed to the record on review. For this reason, Respondent provides the following restatement of the case."

IOW, "we are going to cite the court record up to this point and do your work FOR you." Whammo: leaving the tennis racquet with busted strings collared around their collective heads.....
   They are relentless and yes, even contumelious (!) of the Coleman side:

"Moreover, MN has, for over 100 years, required that contestants bear the burden not only of proving "that there were irregularities," but also proving "that they affected the result" (citing the 1865(!) Taylor v. Taylor case in MN law).... since the Coleman side did NOT so prove its a lot of bogus billingsgate and gasconade. "This rule is settled, clear, and undisputed."

   And again (pdf 25):

"At the outset, Minnesota's statutes are presumed to be constitutional....A court will not strike down a statute....unless the challenging party demonstrates its unconstitutionality beyond a reasonable doubt. Appellants have not even come close to making this showing."

    The "even" is REALLY harsh, a forward roll upthrust of the light saber.....
    Then they REALLY throw it back in the faces of Team Coleman ("Mud on your face, big disgrace!") in refuting Coleman dragging in Bush v. Gore. They point out that Bush v. Gore as an argument regarding Equal Protection not only does not support Coleman, but

"In other words, Appellants' expansive reading of Bush not only finds no support in the(ir) case; it directly contradicts it."

   A MAJOR "read between the lines of my boy Scout salute" moment for sure.
   And finally, in a moment of flawless, Vulcan level logic, Team Franken clobbers the Coleman team for....wait for it...NOT bringing in all nearly 300,000 absentee ballots to be ruled on by the court, but only 11,000 rejected absentee ballots a "mere 4800 rejected absentee ballots." If the Court were to make ANY decision about those 4800 it would deny "equal protection" to the remaining 295,200 because they same "standard" was not applied to them. Yowser!

Nuggets all over the place: PDF p. 47:

"Appellants' claims are incoherent, and there is nothing in either the record or in Appellants' offers of proof that could rehabilitate the factual deficiencies."

As to the missing 133 Minneapolis ballots: PDF page 49:

"Where the original ballots are missing the official results are the best evidence"... This principle is clearly established in both Minnesota and across the country--and has been for well over a century (and then they cite Newton v. Newell from MN.... from 1880; FACE, man!)

In other words burying this whole "missing ballots" (and likewise the supposed "duplicate/double counted" ballots) under the ice rink about 4 Hoffa Units down under the concrete.

   And as they go on into mashing the equal protection argument they go THERE..... yep, right to the dispenser in the men's room in the Judiciary building.

"Even by comparison to the minority of states that still require an excuse (for voting absentee) Minnesota's Legislature has imposed stricter prophylactic standards."

("I do not think that word means what you think it means." Well, maybe..... but still.....)
   Finally, the Brief closes by asking the MN Supreme Ct. to back up the ECC finding that Franken won and is entitled to the Certificate of Election, and that the court "direct" the governor and the secretary of state to issue and sign the certificate in their "ministerial" capacity. That is focused lawyer talk for what so many of you have been saying here: "Sign the damn thing NOW and be done with it." (The "ministerial" language is calling on them to perform the function of their office WITHOUT further deliberation, aimed directly at the Pawlenty hemming and hawing. "You don't GET to deliberate, Tim.")
   To go to the far end of Paul Bunyan's crowbar for maximum leverage the Brief adds a couple things. First the Brief calls on the Court to expedite the certificate of election by waiving a 10-day notice to re-consider/re-hear the case (apparently a little provision that SOME appellant might reach for) INCLUDING offering to waive any re-imbursement to Franken from Coleman for costs of the appeal. Whoa! Lawyers turning down money? Yeah it happens, but I think its rare enough that it might get somebody's (eg.the Court's) attention. AND the Brief cites the Court's OWN ruling (a ruling against Franken in Franken v. Pawlenty (an ancient precedent from February, 2009) that the certificate not issue until the STATE courts are done with the matter. When the MN supremes rule they ask for the certificate REGARDLESS of any federal court action or maneuvers-- in other words, Norm can appeal till a Cornyn Doomsday, but the certificate of election should issue now. We'll see.

    Other Takes on the Brief(s)
     Eric Black at Minn Post has a first take on the Franken Brief here:
And while you're there, Cynthia Dizikes has a nice sidebar story on Senator-elect Franken's committee assignments and impact on the Senate:
     The BigE over at MN Progressive raises an interesting question on the whole "equal protection" matter: since Coleman did not argue EP in his ECC case with evidence or witnesses (you know, stuff the law and cases are made of) but only in closing arguments, can they even appeal on those grounds? Hmmmm.....
     The AP wire story focus is on the coming heat on Pawlenty to  issue the certificate fo election..... a good focus for both the appeal and the story:

    Personal Notes
     Winerev is back from 4 1/2 humidity choked days with Mama Winerev in south Florida. I tell you there is NOTHING like mulching plant beds and laying sod under the double 88s (you know, degrees and percent humidity?) But the beach was wonderful, Kossack SageHagRN gave me lifts to and from the airport in MN (h/t), and Kossack Word Alchemy covered all the breaking news on all things MN senate related (nothing until yesterday, but a h/t for that).
    Through the wonders of modern technology (2 empty tomato cans and a REALLY long piece of string) I was interviewed by the BigE of MN Progressive fame on Friday's KTNF progressive talk radio show. Eric asked about the forthcoming book collecting these diaries into one massive slab suitable for reinforcing sagging floor beams and I was happy to oblige ("by not mentioning the name of the book! Way to go, budding author!"--rough transcript of comment from publisher; blushes).
    But don't let that stop you from pre-ordering Recounting Minnesota direct from the publisher! For ONLY $16.95 (special, pre-publication price!) Recounting Minnesota is available to YOU. Order before June 21 and you will not only receive Recounting Minnesota shipped to you FREE upon publication (mid-summer) but ALSO you copy of (what was the name of that book again?) Recounting Minnesota will be shipped bearing the autograph of winerev, in both internet and meatspace names! No need to wait until midnight to call an operator! Get your copy of Recounting Minnesota by ordering from the 50 states or rest of the world here (the internet is standing by!):

OK back to ye olde grindstone at the wine shop this morning. Thats the semi-latest on the MN Senate Recount to hold you from yust southeast of Lake Wobegon.


Originally posted to WineRev on Tue May 12, 2009 at 04:33 AM PDT.

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