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Franken wins by +312 votes.

April 30 Coleman Appeal Brief to Supreme Court Due: DONE
May 11 Franken Respondent's Brief Due: DONE
May 15 Coleman Reply to Respondent Due: DONE
June 1 Coleman v. Franken Oral Arguments before the MN Supreme Court: 16 days from TODAY

The Coleman Legal Team took their last written shot yesterday with their Reply to Respondent's brief, a 33 page PDF: (Link in first line here:

     The Coleman Reply
     As the one making the Appeal Coleman bears the burden of proof and has to open the case (April 30). Once Franken responds (May 11) Coleman can (optional) file a Reply. Yesterday afternoon he did.

[Comment From NOVA]
The only appeal Coleman has is in court!

     1) When you sift through the 33 pages in PDF some things are noticeable right off. They repeatedly state "the trial court (Election Contest Court: ECC) erred..." which sounds like name-calling or denial of reality but I think is actually lawyer's boilerplate. Coleman is appealing the lower Court decision so his side HAS TO say, "the lower court got it wrong, here's where and here's how." If the lower court got it right and Norm agreed with it there would be no appeal. (If the roles were reversed, Franken's team would be saying the exact same thing: "the ECC erred when they said A, because of B"). So while its a bit jarring to read the phrase repeatedly the Justices will slide their eyes right past those words; for them its language as routine as Alberto Gonzales saying "I don't recall" to anything.
      2) There is no mention of "lets do the whole election over since it was too close to call." That idea has floated around throwing off pixels and ink blots for a while but in their last written word before oral arguments on June 1 the Coleman side does NOT go there. I suppose thats a gain of some kind but sort of hollow, rather like a Honolulu homeowner announcing "I've decided NOT to shovel any snow off my front walk today".... to which the proper reply is, "Still feeling that surfboard on the head from yesterday, eh buddy?"
     3) One more time they add the Supreme Court should look for duplicate/double counted ballots AND throw out the Minneapolis 133/132 (depending on who's counting) ballots that voters signed in and cast (according to voting machine tapes) but that were lost. Both requests are right at the end, barely a paragraph each, and have a tacked-on feel to them, like they were added because, say, Coleman attorney Tony Trimble was standing there saying, "If you don't put these in I'll hold my breath 'till I turn blue and then you'll be sorry." So they added them just to get him to shut up.
   But as a late friend of mine liked to describe the Lutheran inner life, these 2 issues are mostly here out of guilt, fear, shame, dread, and remorse. In the matter of the "duplicate/double counted" they alternate between whining and effrontery. "We brought out one witness to this widespread problem, who maybe overheard some other election officials in her precinct who worked for her maybe say something that sounded like some duplicate ballots were possibly being counted alongside the original ballots. We object that she was cross-examined by the Franken side, object her testimony stricken from the trial record by the Court because we messed up discovery, object the trial court struck her testimony again because we got sanctioned $7500 for tampering with her testimony. We decided NOT to call any other witnesses to this problem and offer no other actual evidence this actually happened BUT the Supreme Court should take, oh, maybe 100/125 votes off Franken's pile because of it." What a bunch of grease trap cleanings! The whole position is about as meaningful as Deputy Sheriff Barney Fife trying to enforce a city noise ordinance at the Sturgis, South Dakota biker's week.
    4) The Coleman side has been also loudly trumpeting their appeal as the opportunity to enfranchise 4400 (stand by for tomorrow's number! Changes daily!) voters who have been wrongfully denied their ballots being counted. But the Minneapolis 133/132 have rightfully had their ballots counted under law: so said Cindy Reichert, Minneapolis director of elections, supported by an opinion by the Attorney General; so said the State Canvassing Board by 5-0; so said the Election Contest Court by 3-0.
     Not ONE person in a position of authority and expertise on MN election law has supported UN-counting these ballots as Coleman wants, not one! And THAT goes to the heart of why this point is added in a mumbled, back of the hand way to their completely undercuts the rest of the Reply's argument regarding equal protection.

    See Norm is at pains (mostly OUR pains; we're on the receiving end of statements by Ginsberg & Friedberg) to highlight that while there IS a set of standards in place in MN law regarding absentee ballots (UNlike Florida 2000 and therefore making Bush v. Gore irrelevant to Coleman v. Franken) and while election officials across the state ARE trained in applying those standards (UNlike Florida 2000 and therefore......), they did not apply those standards with machine like regularity to all 286,000 absentee ballots AND that the variations are enough to swing/cast doubt on the election. Its the only shot they have and they actually make a half-decent argument in the body of their Reply. They offer as a remedy that the Supreme Court "remand" (send back) the case to the ECC with their 4400 absentee ballots(soon to be another exciting number!) with a set of instructions/standards on how to count a few/some/most/all of them. (Curiously, no word on any other ballots Franken might want counted under those same murky standards that have nothing to do with MN law.....)

[Comment From PJ]
Most of the filing was weak - but I think the substantial compliance argument for the absentee ballots is reasonable......
Their rational basis review argument completely ignores the actual rational basis - we want to have locally administered elections.

     But then they continue to press for the EX-clusion/DIS-enfranchising of these 133/2 Minneapolis ballots that MEET the state standards and WERE lawfully cast because......... well, Eric Kleefeld at Talking Points Memo summed not only the Reply AND the appeal Brief BUT ALSO the entire Coleman ECC case this way. The ENTIRE effort since January 5 (when the State Canvassing Board ended its work and declared Franken the winner by +225), ALL the 20,000 pages of ECC trial record, ALL the testimony from over 140 witnesses, ALL the 1900+ exhibits, ALL the Ben Ginsberg bull farting in the Judiciary Building halls.... ALL that boils down to THE Coleman position: "COUNT MORE VOTES FOR ME."
WineRev Predicts: The MN Supreme Court reads Kleefeld and rules unanimously for Franken.

     Other Takes
    Eric Black at MNPost has a fine write up, and don't miss the comments where his readers chip in with sledgehammers to demolish Coleman's position.

     Emily Kaiser from the Minneapolis/St. Paul City pages - reporting on a new Survey USA poll: Should Gov Pawlenty run for a third term in 2010 - Yes 41% [NO 57%]
If the MN Supreme Court upholds the election Contest court certifying Al Franken as the winner, Should Norm Coleman: Appeal - 27% Concede 70%

     Jeff Rosenberg at MNPublius reports a great press release from the MN Democratic Party (DFL) under the headline:
Minnesota Republicans decide elections don’t matter

   We may as well not have held an election in 2008. First, former senator Norm Coleman has deprived Minnesotans of their full representation in the United States Senate, refusing to concede that Al Franken got more votes and is entitled to the seat. Now, Coleman’s crony Governor Tim Pawlenty has threatened to dispense with the elected Legislature, and run the state’s finances in the middle of a historic economic and fiscal crisis using only his executive powers of line-item veto and unallotment

Maybe I need to explain how our Republic works. I thought this was fairly common knowledge, but here goes:
    The public votes for their representatives, and it is accepted that the election results express the will of the people.....
More here:

     Graphic Artist Opening
     And now for something completely different: the collected diaries in this series, Recounting Minnesota: Blogging the Al Franken Election Saga is being edited as you sleep/drink coffee or tea/smoke certain "materials"/garden in your yard growing certain "materials"....... We are still aiming for a mid-August release date in time for Net Roots Nation but the printer is going to need the production files by June 26 (aack!). S/he is ALSO going to need a COVER for the book, something involving ballots/counting/democracy/Franken/horse dentures etc. Be there a Kossack graphic artist who would like to rise to glory, fame (and maybe even pay) by designing such a cover? This is your chance to grab the brass ring! Operators are standing by (well, sitting at a laptop waiting for e-mail.... when not too busy feeding cats..... or editing diary #117..... or editing a manual for Cisco...... or reaching for smoking "materials"....) at
    Over 100 of you fellow maniacs have actually pre-ordered Recounting Minnesota but its NOT too late for the rest of you. A mere $16.95 gets you listed IN THE BOOK as a supporter (by June 20) AND an autographed copy AND free shipping (unless you're overseas, and even then we can give you a break.) Operators are standing by (well, sitting at a laptop waiting for e-mail..... when not walking the dog.... or editing...... or drinking "potent potables"; obviously a completely different operation than the editing board/graphic artist reply chamber.)

    Well I hope that will hold you through your weekend. As there are developments going down to the oral arguments on June 1 I will post diaries but YOU have spring to get to, so have at it! Thats the latest from yust southeast of Lake Wobegon.


OOOOH, OOOOOH, Mr. Kotter! For all the MN Kossacks with a taste for masochism, street theatre or just general hell-raising, the Former-and-soon-to-be-Indicted Senator from Minnesota, the Equine Orthodontic Poster Boy himself, will be appearing live here: (h/t to Dann Dobson of MN Progressive Project)
    As this will be a kosher event, please letter all your signs from right to left. !UOY KNAHT

Originally posted to WineRev on Sat May 16, 2009 at 05:59 AM PDT.

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